1994 (4) TMI 385 - SC - Indian Laws

Arrests only after reasonable preliminary investigation; avoid routine custody; arrestee can inform one person-protected under Articles 21 and 22(1)

SC held that arrests cannot be routine and must follow reasonable satisfaction after preliminary investigation of the complaint and necessity for custody; ... Necessity principle for arrest - right to have someone informed upon arrest - right to consult privately with a lawyer upon arrest - duty to record reasons for arrest in the case diary - Magistrate's duty to ensure compliance with arrest safeguards - requirement for Directors General of Police to issue instructionsNecessity principle for arrest - duty to record reasons for arrest in the case diary - Standards governing when an arrest may be made and the requirement that police record reasons for arrest - HELD THAT: - The Court held that the power to arrest, though available under law, must be exercised only when reasonably necessary; the existence of power alone does not justify an arrest. Arrest should be avoided except where reasonable satisfaction after some investigation shows genuineness of the complaint and the need for arrest (for example, risk of absconding, danger of repetition of offence, protection of victims or preservation of evidence). The police officer making an arrest should record in the case diary the reasons for effecting the arrest to demonstrate conformity with these guidelines. These principles reflect constitutional protections of personal liberty under Articles 21 and 22(1) and the recommendations of investigative reports urging restriction of arbitrary or routine arrests. [Paras 20]Arrest must satisfy the necessity principle and the arresting officer must record reasons in the case diaryRight to have someone informed upon arrest - right to consult privately with a lawyer upon arrest - Magistrate's duty to ensure compliance with arrest safeguards - Procedural safeguards on communication and legal consultation upon arrest and the magistrate's role in enforcement - HELD THAT: - The Court declared that an arrested person is entitled, on request, to have one friend, relative or other person likely to take interest in his welfare informed, as soon as practicable, of the arrest and place of detention, and to be permitted to consult privately with a lawyer. The police must inform the arrestee of this right on arrival at the station and must record in the diary who was informed of the arrest. The Magistrate before whom the arrested person is produced has a duty to satisfy himself that these requirements have been complied with. The Court treated these protections as flowing from Articles 21 and 22(1) and directed strict enforcement of these requirements until they are embodied in legislation. [Paras 21, 22]Arrestees are entitled to have someone informed and to private legal consultation; police must inform and record compliance, and the Magistrate must ensure these safeguards are observedRequirement for Directors General of Police to issue instructions - duty to record reasons for arrest in the case diary - Administrative directions to police leadership to ensure observance of arrest safeguards - HELD THAT: - The Court directed that Directors General of Police of all States issue necessary instructions requiring due observance of the stated requirements relating to informing a relative, advising of the right to consult a lawyer, and making diary entries recording who was informed. The Court additionally directed issuance of departmental instructions that police officers recording arrests must state the reasons for arrest in the case diary. These administrative measures are to operate until legal provisions are enacted. [Paras 23]DGPs must issue instructions to enforce the Court's arrest safeguards and departmental instructions should require reasons for arrest to be recordedNecessity principle for arrest - Remand for enquiry into detention of petitioner - HELD THAT: - Although the petitioner was represented in Court as released, the Court found unanswered questions about why he was detained for five days and whether he was in custody. The Court therefore directed a detailed enquiry by the District Judge, Ghaziabad into the circumstances and justification of the detention and ordered a report within four weeks. This directs a factual investigation to determine compliance with the principles governing arrest and detention. [Paras 7]District Judge, Ghaziabad to conduct a detailed enquiry into the petitioner's detention and report within four weeksFinal Conclusion: The Court set out constitutional and administrative safeguards to curb arbitrary arrests-articulating the necessity principle for arrest, entitlement of an arrestee to have someone informed and to consult a lawyer, the duty to record compliance and reasons in the police diary, the Magistrate's obligation to verify compliance, and directed DGPs to issue implementing instructions; a factual enquiry into the petitioner's detention was ordered to be conducted by the District Judge, Ghaziabad. Issues Involved:1. Illegal detention of the petitioner.2. Violation of human rights due to indiscriminate arrests.3. Balancing individual rights and societal interests in law enforcement.4. Guidelines for lawful arrest and detention.Summary:1. Illegal Detention of the Petitioner:The petitioner, a young advocate, was called by the Senior Superintendent of Police (SSP), Ghaziabad, for enquiries and subsequently detained on 7-1-1994. Despite frequent enquiries by his relatives, his whereabouts remained unknown until it was discovered that he was in the illegal custody of the SHO, P.S. Mussoorie. The petitioner was not produced before a Magistrate and was moved to an undisclosed location. The Supreme Court ordered a detailed enquiry by the District Judge, Ghaziabad, to investigate the reasons for the five-day detention.2. Violation of Human Rights Due to Indiscriminate Arrests:The judgment highlights the expanding horizon of human rights and the increasing crime rate. It addresses the complaints received by the Court regarding human rights violations due to indiscriminate arrests. The Court emphasizes the need to balance individual rights, liberties, and societal interests in law enforcement.3. Balancing Individual Rights and Societal Interests in Law Enforcement:The Court discusses the necessity of a realistic approach to balance individual rights and societal interests. It references Justice Cardozo's and Judge Learned Hand's views on the importance of effective crime prosecution while protecting individuals from police oppression. The Court underscores that the quality of a nation's civilization can be measured by its methods of enforcing criminal law.4. Guidelines for Lawful Arrest and Detention:The judgment refers to the National Police Commission's report, which suggested that a significant portion of arrests were unnecessary or unjustified. It stresses that arrest and detention should not be routine and must be justified beyond the mere existence of the power to arrest. The Court outlines specific guidelines for lawful arrest, emphasizing that arrests should be made only with reasonable satisfaction of the genuineness of the complaint and the necessity of the arrest.Additional Guidelines and Protections:- Public servants' arrests should be intimated to superior officers immediately.- For juvenile offenders, police stations must report arrests without warrant to the District Magistrate.- The Police and Criminal Evidence Act, 1984 in England, and the recommendations of the Royal Commission on Criminal Procedure, suggest restrictions on the power of arrest based on necessity.- The Court mandates that arrested persons have the right to inform a friend or relative and consult privately with a lawyer, as recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984.- The Court issues specific requirements to protect these rights, including informing the arrested person of their rights, making diary entries of who was informed, and ensuring Magistrates verify compliance with these requirements.Conclusion:The Supreme Court directs that these guidelines be followed in all cases of arrest until legal provisions are made. The Directors General of Police of all States in India are instructed to issue necessary instructions for the observance of these requirements and to record reasons for arrests in the case diary.