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Report No. 152

3.15. Section 49: Restraints.-

Section 49 of the Code provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. The emphasis is on the prevention of his escape which may supply the need for restraint. However, at the same time, the quantum of restraint is very carefully defined by the word "necessary". It is noteworthy that the entire provision begins with a categorical prohibition, because the command of the law is that the arrested person shall not be subjected to unnecessary restraint.

Any excessive restraint would definitely give rise to a cause of action or for damages, because, in such a case the immunity from civil action conferred by the doctrine of lawful authority would not be applicable. Presumably, appropriate criminal sections would also be available, with reference to sections 340 to 348 of the Indian Penal Code, as also sections 349 to 358 of the same Code which are concerned with assault and the use of criminal force. If lawful authority is exceeded, the protection otherwise available under sections 76 to 79 of the Penal Code cannot be claimed with the result that penal action will be maintainable against the erring public servant.



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