Joginder Kumar vs State of U.P. and Others*
The petitioner a young advocate of 28 years, was called by the SSP Ghaziabad, UP ., Respondent 4, in his office for making enquiries in some case. It was alleged that on 07/01/1994 at about 10’ o clock he personally along with his brothers appeared before the SsP. At about 12.55 p.m. the brother of the petitioner sent a telegram to the Chief Minister of U.P. apprehending the petitioner “false implication in some criminal case and his death in fake encounter. In the evening, it came to be known that the petitioner was detained in the illegal custody of respondent 5. Next day the SHO instead of producing the petitioner before Magistrate asked the relatives to approach the SSP. On 09/01/1994 in the evening, relatives of the petitioner came to know that the petitioner had been taken to some undisclosed destination. Under these circumstances the writ petition under Article 32 was preferred for release of the petitioner. The Supreme Court on 11/11/994 ordered notice to the State of U.P. as well as SSP, Ghaziabad. The SSP along with the petitioner appeared before the Court on 14/01/1994 and stated that the petitioner was not in detention at all and that his help was taken for detecting some cases relating to abduction and the petitioner was helpful in cooperating with the police. Therefore, there was no question of detaining him.
The Supreme Court while directing the District Judge, Ghaziabad, to make a detailed enquiry and submit his report within four weeks observed as under:
The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. The Court has been receiving complaints about violation of human rights because of indiscriminate arrests. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other, of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis of deciding which comes first – the criminal or society , the law violator or the law abider.
Guidelines for Arrest : No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self –esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be a prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as o the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental rights to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be remanded if a police officer issues notice to person to attend the Station House and not to leave the station without permission would do.
The right of the arrested person to have someone informed, upon request and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, the following requirements are issued.
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The Police officer shall inform the arrested person when he is brought to the Police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested person found in the various police manuals. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest. ( emphasis supplied).