UILS
Panjab university
(criminal procedure code,1973)
TOPIC: After Arrest Procedure(Joginder
Kumar V/s State of U.P AIR 1994 SC 1349)
Submitted to: Submitted by:
Prof. Sangita Bhalla Jigerjeet Singh
171/18
(Faculty of Law) Dishu Kumar 236/18
Arshpreet Singh 239/18
[Link] LLB(c)
5th semester
Acknowledgement
We would like to express our sincere thanks to our ‘Code of Criminal
Procedure’ law faculty Prof. Sangita Bhalla who gave us the
opportunity to undertake research work on the topic ‘After Arrest
Procedure with referece to case Joginder kumar V/s State of U.P’
which help us in doing a lot of research and we understood the concepts
mentioned in the above case. We are also grateful to her for her
continuous support throughout the research.
We are thankful to her for encouraging us to carry out this research. We
would also like to convey our thanks to our classmates for helping us in
this case study.
INTRODUCTION
The objective of this project is to thoroughly analyse the Case law:
Joginder Kumar vs. State of U.P. & Ors. The objective behind
analysing the above mentioned case was that in this case, the Supreme
Court has laid down procedural requirements in cases of arrest, power of
the police to arrest and also laid down guidelines as to how arrest is to
be made.
In this, the Supreme Court has laid down procedural requirements in
cases of arrest. However, instances have come to the court’s notice
where the police have arrested a person without a warrant in connection
with the investigation of an offence, without recording the arrest, and the
arrested person has been subjected to torture to extract information from
him or her for the purpose of further investigation, recovery of case
property or in order to extract a confession.
I will be going to thoroughly analyse the case law. This landmark
judgment defined the powers of the police to arrest a person. This
judgment is especially applicable in the case of a cognizable offence
such as 498A.
Therefore, it would be useful and effective to study and analyse the
above judgement.
FACTS
This is a petition under Article 32of the Constitution of India. The
Petitioner is a young man of 28 years of age who has completed his
L.L.B. and has enrolled himself as an advocate. The Senior
Superintendent of police, Ghaziabad, (Respondent No. 4) called the
Petitioner in his office for making enquiries in some case.
The Petitioner on 7-1-1994 at about 10 O'clock appeared
personally along with his brothers Sri. Mangeran Choudhary,
Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh before
the Respondent No. 4.
Respondent No. 4 kept the Petitioner in his custody.
When the brother of the Petitioner made enquiries about the
Petitioner, he was told that the Petitioner will be set free in the
evening after making some enquiries in connection with a case.
On 7-1-1994 at about 12.55 p.m. the brother of the Petitioner
being apprehensive of the intentions of Respondent No. 4, sent a
telegram to the Chief Minister of U.P. apprehending his brother's
implication in some criminal case and also further apprehending
the Petitioner being shot dead in fake encounter.
In spite of the frequent enquiries, the whereabouts of the
Petitioner could not be located.
On the evening of 7-1-1994, it came to be known that Petitioner
is detained in illegal custody of 5th Respondent SHO, P.S.
Mussoria.
On 8-1-1994, it was informed that the 5th Respondent was
keeping the Petitioner in detention to make further enquiries in
some case. So far as Petitioner has not been produced before the
concerned Magistrate. Instead the 5th Respondent directed the
relative of the Petitioner to approach the 4th Respondent S.S.P.
Ghaziabad for release of the Petitioner.
On 9-1-1994, in the evening when the brother of Petitioner along
with relatives went to P.S. Mussorie to enquire about the well-
being of his brother, it was found that the Petitioner had been
taken to some undisclosed destination.
Under these circumstances, the present petition has been
preferred for the release of Joginder Kumar, the Petitioner,
herein.
The Supreme Court on 11-1-1994 ordered notice to State of U.P.
as well as S.S.P. Ghaziabad.
CONTENTIONS
The said Senior Superintendent of Police along with Petitioner
appeared before this Court on 14-1-1994. According to him, the
Petitioner has been released. To question as to why the Petitioner was
detained for a period of five days, he would submit that the Petitioner
was not in detention at all. His help was taken for detecting some cases
relating to abduction and the Petitioner was helpful in co-operating
with the police. Therefore, there is no question of detaining him.
ISSUES
Whether the law of arrest is one of balancing individual rights,
liberties and privileges.
Whether a balance can be struck between the expanding horizon
of human rights and increasing crime rate.
ORDER OF THE COURT
The Supreme Court in the present case did not pass any judgement
related to the issue of the detention of Joginder Kumar, the petitioner.
Instead it has passed an order and directed the trial court to make
further inquiries. In this case, the Supreme Court only laid down the
guidelines related to the arrest by Police.
The Supreme Court held that though the relief in habeas corpus
petition cannot be granted yet this Court cannot put an end to the writ
petition on this score. Where was the need to detain the Petitioner for
five days, if really the Petitioner "was not in detention, why was not
this Court informed are some questions which remain unanswered, if
really, there was a detention for five days, for what reason was he
detained? These matters require to be enquired into.
Therefore, the Court directed the learned District Judge, Ghaziabad to
make a detailed enquiry and submit his report within four weeks from
the date of receipt of this order
DECISION
REFERENCE TO JUDICIAL DECISIONS:
The Supreme Court first discussed the law laid down by great judges
in judicial decisions and then went on to lay down the guidelines that
will be dealt shortly.
Firstly, the Supreme Court concerned itself that the horizon of human
rights is expanding. At the same time, the Crime rate is also
increasing. The Court has been receiving complaints about violation of
human rights because of indiscriminate arrests. How to strike a
balance between the two?
The Supreme Court answered the above question by saying that a
realistic approach should be made in this direction.
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; of deciding which comes first-the
criminal or society, the law violator or the law abider; of meeting the
challenge which Mr. Justice Cardozo so forth rightly met when he
wrestled with a similar task of balancing individual rights against
society's rights and wisely held that the exclusion rule was bad law,
that society come first, and that the criminal should not go free
because the constable blundered.
The Supreme Court further pointed out that the quality of a nation's
civilisation can be largely measured by the methods it uses in the
enforcement of criminal law.
Our constitutional perspective has, therefore, to be relative and cannot
afford to be absolutist, especially when torture technology, crime
escalation and other social variables affect the application of principles
in producing humane justice.
3RD REPORT OF NATIONAL POLICE
COMMISSION:
The Supreme Court pointed out the suggestions of Third Report of the
National Police Commission of India which 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 offences unless his movements are brought under
restraint.
The accused is a habitual offender and unless kept in custody he
is likely to commit similar offences again.
The Supreme Court further pointed out that 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.
.GUIDELINES:
The Court pointed out that the above guidelines given by various
judicial decisions and suggested by reports are merely incidents of
personal liberty guaranteed under the Constitution of India. The
Supreme Court after analysing all the above considerations laid down
the following guidelines.
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 bonafides 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 Station without permission would do.
RIGHT TO INFORM:
The Supreme Court, then, discussed that there is the right to have
someone informed. That right of the arrested person, upon request, to
have someone informed and to consult privately with a lawyer was
recognised 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.”
REQUIREMENTS:
The Supreme Court pointed out that the rights mentioned above
related to the arrest are inherent in Articles 21 and 22(1) of the
Constitution of India and must be recognised and scrupulously
protected.
For effective enforcement of these fundamental rights, the Court
issued the following 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 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.
Finally, the Supreme Court said that the above requirements shall be
followed in all cases of arrest till legal provisions are made in this
behalf. These requirements shall be in addition to the right of the'
arrested persons found in the various Police Manuals. These
requirements are not exhaustive. The Directors General of Police of all
the Suites 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.
ANALYSIS & CONCLUSION
Given the increase in crime and human rights violations by way of
indiscriminate arrests, the Hon’ble Court sought a way to strike a
balance between the two. In view of a citizen’s constitutional rights and
the police officer’s own interests, it would be prudent for a police officer
to not make an arrest with a reasonable belief as to the person’s
complicity in an offence; and as to the need to arrest such person along
with a reasonable satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint. Denying a person his liberty
is a serious matter and officer arresting must have some reasonable
justification that the arrest is necessary.
The following procedural guidelines were laid down:
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 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 flow from
Articles 21 and 22(1) and must be enforced strictly.)
And upon production of the arrested person before him, the
Magistrate has to satisfy himself that the requirements have been
complied with.
It was clarified that the above guidelines cum requirements were
not exhaustive and were in addition to the rights of an arrested
person under various Police Manuals. They were to be followed in
all cases of arrest until concerned legal provisions were made.
Moreover, departmental instructions were insisted upon to ensure
that a police officer making an arrest also records the reasons for
making the arrest in the case diary.
