REMEDIES AGAINST UNLAWFUL CONFINEMENT

Every individual is inherent of rights to free movement from one place to another with consenting will over one’s corpus (body). Wrongful confinement occurs when the aforesaid rights are infringed with the person committing the same not having any lawful justification for the commission of the act. By the practice of wrongful confinement , a person simply by the way of activity, force or blocking means necessary to satisfy movement, tries to implement their obstinateness for which they can be further subjected to civil and penal liabilities.

The detention so mentioned however is not restricted, regarding liability ,to the private parties but includes the government and executive authorities as well. When a person is found to be illegally detained at any place within the surveillance of any Individual/group/authority/organization the liability will attract similarly irrespective of the status of the detainer. As a concept of general prudence, with infringement of rights eventuates remedies, which against such acts can be traced within different enactments, going by the prevalent provisions in India.

REDRESSAL MECHANISM 

With distinct enactments focusing different areas based on degrees and other criteria to implement the penal liability, the legislature continuously tried to put the definition of confinement within different specific means based on factual position and diversity of cases with Intention, cause, justification etc as a mode of decisive factors. Some of the provisions to revive the status of victim by various means can be traced within these acts ;

• CRIMINAL PROCEDURE CODE, 1973 – SECTION 97 [ Search for persons wrongfully confined ] – The said provision deals with active actionable remedy against confinement. When an application reveals detainment of any person and non apppearance of such person on notice to nullify the infringement of their rights, a warrant to rescue the corpus can be operated with the intervention of police officials directed by the satisfactory orders of Magistrate ( Executive or Judicial). The said section is considered counterpart of the nature enshrined under Article 32 of the Constitution but with executive intervention at the first hand.

• CONSTITUTION OF INDIA, 1950 – ARTICLE 32 AND ARTICLE 226 [ POWERS TO ISSUE WRITS ] – Apex court and Respective High courts have been conferred with powers to issue writs in the nature of;

1-Habeas Corpus

2- Certiorari

3- Mandamus

4- Quo-Warranto

5- Prohibition 

To establish the infringed fundamental rights of the individuals when it comes to powers of apex court and to resolve the matter within solitary jurisdiction pointing out at the power of High courts. The powers so specified are judicial in nature provided the intervention. 

Looking at the matter of confinement, Writ of Habeas Corpus { To produce the body } protects an individual from unlawful detention whereas under this writ, an order is issued by the court to a public official to produce the detained person before the court. 

The court then examines the grounds on which the individual has been detained. If the detention has no legal justification, the detained person is set free. The aforementioned right to review the detainment cannot be suspended even in the state of emergency within Nation.

• TORTS [ FALSE IMPRISONMENT ] – False imprisonment is a tort and common law misdemeanor. Under the concept of false imprisonment both civil and penal liability can be subjected to ,for intentionally restricting an individual’s movements to proceed anywhere freely. The elements that lie within tort for the False improvement are: Willful detention, Without consent and Without authority of law. There are several compensatory remedies available in the tort namely : Action for loss, Nominal and compensatory damages, Punitive, exemplary and aggravated losses, Habeas corpus ( Article 32 and 226 ) and self help.

In the case of Rudul shah v State of Bihar, the petitioner, an under-trial was wrongfully confined in jail for several years despite his acquittal by the Court. The High Court of Patna held that as soon as a person under trial is found not guilty by the court, he should be set free. Any detention after it shall be unlawful. The State had to pay a sum of Rs. 30,000 as compensation.

• INDIAN PENAL CODE, 1860- SECTION 340 [ WRONGFUL CONFINEMENT ] – Which provides that Whoever “wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said to have committed the offence of wrongful confinement” ,the punishment of which is provided under section 342 of the Indian Penal Code. 

In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ 248 Guj), it was discussed by the court that “For a charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind of the victim, a reasonable apprehension in his mind that he was not free to depart. If the impression creates that the complainant would be forthwith seized or restrained if he attempts to escape, a reasonable apprehension of the use of the force rather than its actual use is sufficient and important.”

CONCLUSION 

The implementation of provisions vary in accordance with the factual distinction. The remedies are provided to resolve issues quickly by delegation of powers from Judiciary to executive. Recently while hearing a Habeas corpus petition, the Hon’ble Supreme court mentioned how with the trend of filing writ petitions before the SC as a shortcut, other remedies as Section 97 of CrPC ,Has Become Dead Letter. The recourse of such available remedies must be actively resorted with by the victims/complainants depending on the facts of the cases and not entirely the society must depend over a single remedy provided the quick emergency redressal mechanism that is envisaged under the same.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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