Joginder Kumar v. State of U.P.

This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.

CASE NUMBER

WP Crl. No. 9/1994

EQUIVALENT CITATION

1994 AIR 1349, 1994 SCC (4) 260

BENCH

M.N. VENKATACHALLIAH (CJ), S. MOHAN (J), A.S. ANAND (J)

DECIDED ON

25 April 1994

FACTS

The petitioner, a man of 28 years of age was enrolled as an advocate.
The Senior Superintendent of Police (SSP) of Ghaziabad called the petitioner in his office for making enquiries in some case.
The petitioner on 7 Jan.1994 at about 10 o’clock appeared personally along with his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, and Amar Singh.
SSP kept the petitioner in his custody.
The brother of the petitioner made enquiries about the petitioner, but he was lied and told that the petitioner will be released by the evening after making some enquiries in connection with a case.
On 7 Jan.1994 at about 12.55 p.m., the brother of the petitioner sent a telegram to the Chief Minister of U.P. in concern to his brother’s arrest regarding some criminal case and also further insinuating that the petitioner has been shot dead in a fake encounter.
On the evening of 7 Jan 1994, it came to the knowledge that the petitioner was detained in an illegal custody of the SHO of Mussoorie.
On 8 Jan. 1994, it was informed that the petitioner was kept in detention to make further enquiries in some case. So far, the petitioner was not produced before the Magistrate concerned. Instead, the relatives of the petitioner were directed by the SHO of Mussoorie to approach the SSP of Ghaziabad for release of the petitioner.
On 9 Jan. 1994, in the evening when the brother of the petitioner along with some relatives went to the Police station of Mussoorie to enquire about the well-being of his brother, they found out that the petitioner had been taken to some destination which remains undisclosed.
The police officers claimed that the advocate was released and there was no question for detaining him as he was cooperating with them in some Abduction related matter.

ISSUE(S)

When can an arrest be made and on what grounds?

JUDGMENT

Various provisions and reports were discussed in the Hon’ble Apex Court in detail. It was stated that no arrest can be made as it is lawful for the police officer to do so. It was also mentioned that the existence of the power to arrest is one thing while the justification for the exercise of it is another. Hence, the police officer is needed to be able to justify the arrest apart from his power to do so.

An incalculable harm can be caused to the reputation and self-esteem of a person in arrest and detention in police lock-up. A person cannot be arrested merely on an allegation of commission of an offence made against him in a routine manner. This would be wise of a police officer in the interest of protection of the constitutional rights of a citizen and in his own interest as well, that no arrest is made without reasonable satisfaction after some investigation to find out the genuineness of a complaint. And denying a person of his liberty is a serious issue.

The advocacy of the Police Commission reflects the constitutional connections of the fundamental right to personal liberty and freedom. A person is not liable to get arrested merely on the suspicion of complicity in an offence. There must be some satisfactory justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified unless the crime is a heinous offence. Then, an arrest must be avoided if a police officer issues a notice to a person to be present in the police station and not to leave the Station without permission.

The rights are fundamental rights which are inherent in Articles 21 and 22(1) of the Constitution. They are required to be recognized and meticulously safeguarded. For effective enforcement of those fundamental rights, the Hon’ble Court issued the following guidelines:

An arrested person being held in custody is entitled to inform 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 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 Articles 21 and 22(1) must be enforced strictly.

It was further directed that it will be the duty of the Magistrate to satisfy himself with the requirements before whom the arrested person is produced.

HELD

It was ruled by the court that an arrest cannot be made on a mere allegation of offence against a person or in a routine manner without any genuine complaint and a proper investigation. Constitutional rights of a person mandate that he is not arrested on simple suspicion of complicity in an offence and cannot be arrested without a reasonable satisfaction reached after some investigation to find out the genuineness of the complaint. The mentioned requirements must be followed in all the cases of arrest till the other legal provisions are made on their behalf. Those requirements were mentioned to be added to the rights of the arrested persons in the various police manuals. The mentioned requirements are not exhaustive. So, the Directors General of Police of all the States in India were asked to issue necessary instructions requiring due observance of these requirements. In addition, the departmental instructions were also asked to be issued that a police officer making an arrest should also record in the case diary mentioning the reasons for making the arrest.

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