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)

JOGINDER KUMAR Versus STATE OF UP.

SC held that arrests cannot be routine and must follow reasonable satisfaction after preliminary investigation of the complaint and necessity for custody; ... Illegal detention - Guidelines for lawful arrest and detention - petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as an advocate - HELD THAT:- 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 the Station without permission would do. 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 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. 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.