Case title:
“JOGINDER KUMAR VS. STATE OF U.P. & ORS.”
Date of Order:
25 April 1994
Bench:
M.N.VENKATACHALLIAH CJ. , S. MOHAN J. , A.S.ANAND J.
Parties:-
PETITIONER : JOGINDER KUMAR
RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS
SUBJECT:
Powers of police to arrest and its exercise.
IMPORTANT PROVISIONS
S. 41, S. 41A, S. 41B, S. 41 D, S. 49, S. 50 A, S. 57, S. 151 Cr.P.C.
Art. 21, Art. 22(1) of the Constitution of India
JUDGMENT ANALYSIS
FACTS OF THE CASE:
The petitioner Joginder Kumar, a 28 years old advocate was called by the S.S.P., Ghaziabad Police in connection with inquiry in some case. The petitioner along with his four brothers went to the police station and appeared before the S.S.P. on 7 Jan 1994. The petitioner was asked to stay back and his four brothers were asked to leave, assuring them that the petitioner will be free to go later that evening as the inquiry is going on and he is helping the police to make further investigation in some case. However, the petitioner was not released. So, one of the brothers of the petitioner via telegram informed the then Chief Minister of U.P. regarding detaining of his brother and the telegram also expressed a fear of fake police encounter of bis brother, the petitioner. Later on the same day, the petitioner’s brother from some source got information that his brother had been illegally detained in custody of an S.H.O. in Mussoorie, Uttarakhand. The next day, on 8 Jan, it was informed to the family of the petitioner by S.H.O. Mussoorie that he had been detained for making inquiries in some case. However, the petitioner had not been produced before any magistrate despite passing of twenty-four hours. Further, S.H.O. Mussoorie directed the relatives of the petitioner to approach S.S.P., Ghaziabad regarding release of the petitioner. On 9 Jan, the relatives of the petitioner reached Mussoorie to see the petitioner and to make sure his well being, to their surprise, the petitioner was nowhere to be found and the Police officials remained silent to his location . The petitioner remained in detention for a total period of five days.
ISSUES RAISED:
Whether the power of Police to arrest a person is arbitrary?
ARGUMENTS ADVANCED BY THE PETITIONER:
the petitioner moved to the court challenging his groundless detention and non disclosure of his location to an informed person or relative. The petitioner also questioned before the court whether police has unlimited power to detain a person groundlessly and keep him under such detention without an inch of information or intimation to any authority or to the family / friends of the detainee.
ARGUMENTS ADVANCED BY THE RESPONDENT:
the respondents submitted that no question of detention arouse as the petitioner was cooperating with the police in connection with some case and he was exercising his civic duty by helping the investigating authority.
JUDGEMENT ANALYSIS:
The Hon’ble Supreme Court discussed various provisions of the Criminal Procedure and National Police Commission Reports in detail and gave a landmark judgment which shed light on multiple aspects of a person’s right to life with dignity viz a vie detention.
The Hon’ble Supreme Court by the means of this judgment gave exhaustive rules and guidelines which the police officials must adhere in pursuance of their powers and duties. Arrest and detention can only be made on one or multiple of such grounds and no other, which are:
1. Person’s unwillingness to identify himself so that summons may not be served upon him.
2. There exists a need to prevent repetition of that offence by such person.
3. There is a need to protect the arrested / detained person himself or from others.
4. In order to preserve and secure evidence. Also to obtain evidence from suspected person by means of questioning him in custody.
5. There is likeliness of his absence before the court of law.
The Hon’ble Supreme Court laid various guidelines in this case regarding arrest and detention, which are as follows:
1. No unnecessary arrest or detention is to be made only because police has the power to do so.
2. Absolutely no arrest or detention should be exercised by the police without reasonable suspicion or credible information against such arrested person or detainee.
3. An arrest / detention violates the fundamental right to life under article 21 and also contravenes article 22 (1) of the Constitution of India, which iterates that no person is to be detained in custody without being informed the grounds of such arrest/ detention. 4. No person is to be arrested / detained in custody on mere suspicion o complicity in an offence, except in heinous offences.
5. The police must avoid arrest till the time no grave circumstances arise which makes them believe that such person will either evade appearance, or will destroy evidence, more so that such person will be a danger to the society.
6. Police officials should rather issue Notice of appearance under S. 41-A Cr.P.C. to attend and appear before the police station, whenever called upon.
7. The Constitution enshrines upon fundamental rights wherein by the virtue of Art. 21 and Art. 22 (1) it is inherent that there exists right of such person who is subjected to arrest / detention to have someone informed who could be known or who is likely to take interest in the welfare of the person under arrest / detention. Such information, as to who was informed regarding the arrest / detention must be entered in the diary maintained by the police.
8. The Hon’ble Supreme Court also referred to the right to consult a private lawyer which is recognised under sec. 56(1) of Police and Criminal Evidence Act, 1984 in England.
9. The magistrate before whom such arrested / detained person is produced shall be duty bound to satisfy himself that the requirements as laid by this Apex Court have been complied with. The Apex Court also relied upon the National Police Commission Third Report which unveiled that, “Power of police to arrest as chief source of corruption in India.” It was also released that unnecessary and unjustified arrests and detention lead to 43.2% of jail expenditure in India, which is an exploitation of the government revenue and that of the tax payers’ money. Thus there must be no unnecessary and bogus arrests or detentions. This power must be used with strict adherence to law and its procedure.
CONCLUSION:
the Apex Court concluded that the power of arrest must be used sparingly and not in a casual manner or by mere allegation or suspicion against a person. The Constitution protects all person from unnecessary arrest and mandates that he must not be arrested on mere complicity in an offence. A just and reasonable ground must exist, either upon investigation or by information received from a credible source upon which the police relies. The aforementioned rules and guidelines must be strictly followed while arresting or detaining any person as it violates the fundamental rights of such person, enshrined by the Constitution. Thus to conclude, a person’s liberty, dignity and right to life are given importance and preference over mere suspicions and allegations in regard to arrest and detention
