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SUPREME COURT OF INDIA
M.N. Venkatachaliah, CJI, S. Mohan and A.S.
Anand, JJ.
Joginder Kumar- Petitioner
Versus
State of U.P. & Ors. - Respondents
Writ Petition (Crl) No.9 of 1994
Decided on 25.4.1994
Held: 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 can 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 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 bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to 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 right 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 avoided if a police Officer issues notice to person to attend the Station House and not to leave Station without permission would do. (Para 14)
Further held: These rights are inherent in Articles 21 and 22(1) of the Constitution and require be recognising and scrupulously protecting. For effective enforcement of these fundamental rights, we issue the following requirements:
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 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. I 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 persons found in the various Police Manuals. (Paras 15 & 16)
Result: Ordered accordingly.
ORDER
M.N. Venkatachaliah, CJI - This is a petition under Article 32 of the Constitution of India. The petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as an advocate. The Senior Superintendent of Police, Ghaziabad, respondent No.4 called the petitioner in his office for making enquiries in some case. The petitioner on 7.1.1994 at about 10 O'clock appeared personally along with his brothers Sri Mangeram Choudhary" Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh & others before the respondent No. 4. Respondent No. 4 kept the petitioner in his custody. When the brother of the petitioner made enquiries about the petitioner, he was told that the petitioner would be set free in the evening after making some enquiries in connection with a case.
2. On 7.1.1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of respondent No. 4, sent a telegram to the Chief Minister of U.P. apprehending his brother's implication in some criminal case and also further apprehending the petitioner being shot dead in fake encounter.
3. In spite of the frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of 7.1.1994, it came to be known that petitioner is detained in illegal custody of the 5th respondent, S.H.O, P.S. Mussorie.
4. On 8.1.1994, it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. So far as petitioner has not been produced before the concerned Magistrate. Instead the 5th respondent directed the relative of the petitioner to approach the 4th respondent S.S.P. Ghaziabad for release of the petitioner.
5. On 9.1.1994, in the evening when the brother of petitioner long with relatives went to P.S Mussorie to enquire about the well-being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the present petition has been preferred for the release of Joginder Kumar, the petitioner herein. This Court on 11.1.1994 ordered notice to State of D.P. as well as S.S.P. Ghaziabad the said Senior Superintendent Police along with petitioner appeared before this Court on 14.1.1994. According to him, the petitioner has been released. To question as to why the petitioner was detained for a period of five days, he would submit that the petitioner was not in detention at all. His help was taken for detecting some cases relating to abduction and the petitioner was helpful in co-operating with the police. Therefore, there is no question of detaining him. Though, as on today the relief in habeas corpus petition cannot be granted yet this Court cannot put an end to the writ petition on this score. Where was the need to detain the petitioner for five days; if really the petitioner was not in detention, why was not this Court informed be some questions which remain unanswered. If really, there was a detention for five days, for what reason was he detained? These matters require to be enquired into. Therefore, we direct the learned District Judge, Ghaziabad to make a detailed enquiry and submit his report within four weeks from the date of receipt of this order.
6. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
7. 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 la
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