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Joginder Kumar v. State Of U.P and Others
1994 AIR 1349: 1994 SCC (4) 260
JUDGES: M.N. Venkatachaliah, S. Mohan and Dr. A.S. Anand
Date of Decision: 25/04/1994
FACTS:-
This is a petition under Article 32 of the Constitution of India. The petitioner, Joginder Kumar, a young lawyer aged 28 was called to the office of the Senior Superintendent of Police [SSP], Ghaziabad in connection with some inquiries. He was accompanied by friends and his brother, who were told by the police that he would be released in the evening. But Joginder Kumar was taken to a police station with the assurance that he would be released the next day. Next day, too he was not released as the police wanted his help in making further inquiries. When his family went to the police station on the third day, they found that he had been taken to an undisclosed location. In effect, Joginder Kumar was illegally detained over a period of five days. His family had to file a habeas corpus writ petition with the Supreme Court to find out his whereabouts. The Court issued notices to the State of Uttar Pradesh and to the SSP to immediately produce Joginder Kumar and answer why he was detained for five days without a valid reason; why his detention was not recorded by the police in its diary; and why he was not produced before a magistrate.
ISSUE:-
When an arrest should be made?
JUDGMENT:-
Hon’ble Apex Court discussed various provisions and reports in detail and stated that 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 the Station without permission would do.
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, Hon’ble Court issued the following guidelines:
- 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 was further directed that, 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.
HELD:-
It was ruled that, an arrest cannot be made on a mere allegation of offence against a person or in a routine manner. Constitutional rights of a person mandate that he not be arrested on simple suspicion of complicity in an offence. It cannot be made without a reasonable satisfaction reached after some investigation is made as to the genuineness of the complaint.
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