Author: A I Sugandesh, Government Law College, Dharmapuri
Edited By: Gyanu Patel, Law Student at Amity University, Lucknow, Uttar Pradesh
ABSTRACT / HEADNOTE
This case Joginder Kumar v. State of U.P. (1994) deals with the unlawful detention of an enrolled Advocate who was called by the Senior Superintendent of Police, Ghaziabad for making some enquiry related to the abduction case. But there no inquiry had taken place. The petitioner’s location was disclosed by the respondent. So, a writ petition was filed by the petitioner’s brother before the Supreme Court under Article 32 of the Indian Constitution. The argument of the petition is to release the petitioner who was detained illegally. However, the respondent argued that the petitioner had not been detained. So, the court directed the learned District Judge of Ghaziabad to make a detailed inquiry within four weeks of the receipt of the order. The inquiry had the report of the National Police Commission report that nearly 60% of arrests were unjustified. And that unjustified action of the police accounted for nearly 43.2% of the expenditure of the jails. The court also noted the Royal Commission’s report of England on the objectives of the principles of the police in the act of arrest. The court considered the contravenes between the balance of the violation of human rights because of the indiscrimination arrests and increasing crime rate in the society.
The Supreme Court bench led by the Chief Justice of India M.N. Venkatachalliah laid down the guidelines for the arrest of a person to protect the fundamental right of the person. And the arrest should not be arbitrary.
Keywords: Indian Constitution, Article 21, Article 22(1), Article 32, Unlawful detention, Police custody, Personal liberty, Individual rights, Legal obligation, National Police Commission and Law enforcement.
CASE DETAILS
| i) Judgement Cause Title / Case Name | Joginder Kumar v. State of U. P |
| ii) Case Number | WRIT PETITION (CRL) NO. 9/1994 |
| iii) Judgement Date | 25 April 1994 |
| iv) Court | Supreme Court of India |
| v) Quorum / Constitution of Bench | 3/Division bench |
| vi) Author / Name of Judges | i) Chief Justice of India: Justice. M.N. Venkatachalliah
ii) Justice. S. Mohan iii) Justice. A. S. Aanad |
| vii) Citation | 1994 SCC (4) 260, 1994 AIR 1349 |
| viii) Legal Provisions Involved | Constitution of India Article 32, Article 21, Article 22(1), section 58 of CrPC, section 19(a) of Children Act and the rule 229 of procedural and conduct of business in Lok Sabha. |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
The case Joginder Kumar vs State of Uttar Pradesh (1994) was held in the Supreme Court of India. This petition was filed by a young man aged 28, who was enrolled as an Advocate. As the petitioner alleged the illegal detention by the SSP of Ghaziabad, the court acknowledged the unlawful detention of the petitioner. In which the court had made an observation in the balance between the individual rights of a person and the increased rate of crimes in society. To understand the key concept of the case and the act of the petitioner we should understand the background of the case.
FACTS OF THE CASE
Procedural Background of the Case
In this case, the petitioner filed a writ petition under Article 32 of the Constitution of India. The petitioner was a young man age 28, who was enrolled as an Advocate. The present petitioner in this case was the brother of the petitioner. The Senior Superintendent of Police (SSP) of Ghaziabad (respondent 4) called the petitioner in his office to make an inquiry in some cases.
Factual Background of the Case
On 7.1.1994 about 10 o’clock the petitioner and his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh, and others were before Respondent 4. And Respondent 4 kept the petitioner in his custody. When the brother of the petitioner enquired the custody of the petitioner, lie was told that the petitioner would be set free in the evening after making some inquiries in connection with a case.
On 7.1.1994 at about 12:55 pm., the brother of the petitioner being apprehensive of the intentions of respondent 4, sent a telegram to the Chief Minister of U.P. apprehending his brother’s implication in some criminal cases and also further apprehending the petitioner being shot dead in a fake encounter. The frequent inquiries, and the whereabouts of the petitioner could not be located. On the evening of 7.1.1994, it came to know that the petitioner was detained in illegal custody of the 5th respondent, SHO, P.S. Mussoorie.
On 8.1.1994, it was informed that the respondent was keeping the petitioner in detention to make further inquiries in some cases. The petitioner has not been produced before the Magistrate concerned. Instead, the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for the release of the petitioner.
On 9.1.1994, In the evening the brother of the petitioner along with relatives went to P.S. Mussoorie to enquire about the well-being of his brother, it was found that the petitioner had been taken to some undisclosed destination. The court on 11.1.1994 ordered notice to the State of U.P. as well as SSP, Ghaziabad.
LEGAL ISSUES RAISED
- Whether the court can entertain this petition?
- Does the arrest is violation of human rights?
- Whether the power of police to arrest a person is arbitrary?
PETITIONER ARGUMENTS
The counsels for Petitioner submitted that the petitioner was detained illegally by the 4th respondent. And they argued that if there was any specific reason for the detention. The present petitioner had a suspicion in the intention of the 4th respondent so, they sent a telegram to the Chief Minister of U.P. apprehending the petitioner being shot dead in a fake encounter. They argued that why the petitioner had been detained for 5 days. And they stated that why the location of the petitioner was disclosed. They also argued that why the petitioner had not been produced before the Magistrate concerned.
RESPONDENT’S ARGUMENTS
The counsels for Respondent submitted that the petitioner had not been detained at all, the respondent had no intention of detaining the petitioner. They argued that the petitioner was helping us for detecting in some cases related to the abduction. The respondent also argued that there was no reason for the detention of the petitioner. The respondent does not want this petition to be entertained as a writ petition in this court.
RELATED LEGAL PROVISIONS
Constitution of India, 1950
“Article 32: Remedies for enforcement of rights conferred by this part.
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
- Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”[1]
“Article 21: Protection of life and Personal liberty.”
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”[2]
“Article 22(1): No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the rights to consult, and to be defend by, a legal practitioner of his choice.”[3]
Criminal Procedure Code, 1973
“Section 58: Police to report apprehensions.
Officers-in-charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”[4]
Children Act, 1960
“Section 19(a): The parent or guardian of the child, if he can be found, of such arrest and direct him to present at the children’s court before which the child will appear.”[5]
Rule 229 of the Procedure and Conduct of Business in Lok Sabha
“When a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is affected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.”
JUDGEMENT
The Supreme Court ordered to release of the petitioner and the court acknowledged that the arrest of the petitioner was an unlawful detention.
The Honourable Supreme Court directs the learned District Judge Ghaziabad, to make a detailed inquiry and submit a report within four weeks from the date of receipt of the order.
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 violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
A realistic approach should be made in this direction, that 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. That on deciding whether the society or criminal. Society should first and the criminal should not go free on the constable blundered.
In People v. Defore Justice Cardozo observed:
“The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.”[6]
The statement by Judge Learned Hand, in Fried Re: “The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”[7]
The Court observed that in the case Nandini Satpathy v. P.L. Dani[8], quoting Lewis Mayers stated: “The paradox has been put sharply by Lewis Mayers:
‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right’.”[9]
The National Police Commission in its Third report referring to the quality of arrest by the police. The report suggests that nearly 60% were neither unnecessary or unjustified, that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
“It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in ‘ail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2% of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”[10]
Third Report of the National Police Commission at p. 32 also suggested: “An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
- The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.
- The accused is likely to abscond and evade the processes of law.
- The accused is given to violent behaviour and is likely to commit further offenses unless his movements are brought under restraint.
- The accused is a habitual offender and unless kept in custody he is likely to commit similar offenses
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.”[11]
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so.
When a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest.[12]
In cases of members of the Armed Forces, Army, Navy, or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is affected.
Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is affected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/ Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.[13]
Concerning the apprehension of juvenile offenders Section 58 of the Code of Criminal Procedure lays down as under:
“Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”[14]
Section 19(a) of the Children Act makes the following provision: “The parent or guardian of the child, if he can be found, of such arrest and direct him to be present at the Children’s Court before which the child will appear;”[15]
In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act, 1984 based on the report of Sir Cyril Philips Committee.[16]
The Royal Commission suggested restrictions on the power of arrest based on the “Necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it is genuinely necessary to enable them to execute their duty to prevent the commission of offence, and to investigate crime.
The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers.
In England, there is the right to have someone informed. The right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England.
That section provides: “Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.”[17]
RATIO DECIDENDI
The ration decidendi of the case was held that arrest should not be in every cognizable offense and they ordered the following guideline.
The rights that are inherent in Articles 21 and 22(1) of the Constitution and required to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, the court made the following guidelines as the requirements:
- 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.
- The police officer shall inform the arrested person when he is brought to the police station of this right.
- 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 on this behalf. These requirements shall be in addition to the rights of the arrested persons 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. The court ordered to release of the petitioner immediately.
OBITER DICTUM
The court considered the emphasis on the right of arrest of a person. The court had made several observations in the case.
- The court observed the misuse of the power. The court acknowledged the power of the police that they were misused against the people of the society.
- The court observed the horizon of human rights was expanding in the society, where the balance between the individuals’ rights and crimes in the society should be justified.
- The arrest of a person should not be routine, it should be justified based on reasonable grounds or evidence.
CONCLUSION & COMMENTS
The Supreme Court concluded that the arrest should be used sparingly and by mere allegation or suspicion against a person. In our society, the power provided to the police is to safeguard the law and order and to ensure the protection of the civilians. In my opinion if the police were abusing their power, then how the society be safeguarded? So, the imposition of the limitation of power with strict regulations and guidelines are the tools that ensure the protection of society even if there is an abuse of the power in the society.
REFERENCES
Important Cases Referred
- People v. Defore 242 N.Y. 13 (1926)
- Nandini Satpathy v. P.L. Dani AIR 1025 (1978)
- People v. Adams 59 Cal.App.3d 559 (1976)
- In Fried. 161 F.2d 453 (1947)
Important Statutes Referred
- Constitution of India (1950)
- Criminal Procedure Code (1973)
- Children Act (1960)
- The Rule of Procedure and Conduct of Business in Lok Sabha (1956)
- WEBSITE REFERRED
[1] Article 32 of Constitution of India
[2] Article 21 of Constitution of India
[3] Article 22(1) of Constitution of India
[4] Section 58 of Criminal Procedure Code
[5] Section 19(a) of Children Act of 1960
[6] New York Court of Appeals 242 N.Y. 13
[7] Circuit Court of Appeals, Second Circuit 161 F.2d 453
[8] 1978 AIR 1025 at p. 1032
[9] SCC p. 433, para 15
[10] SCC p. 433, para 15
[11] Third Report of the National Police Commission at p. 32
[12] The Central Civil Service (Classification, Control & Appeal) Rules, 1965
[13] Rule 229 of the Procedure and Conduct of Business in Lok Sabha
[14] Section 58 of the Code of Criminal Procedure, 1973
[15] Section 19(a) of the Children Act, 1960
[16] Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1
[17] Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313
