Joginder Kumar Vs State of U.P
Judges
MNVenkatachalliahCJ.,
S.Mohan J.,
AS Anand J.,
Facts
1.This case was a combined hearing held
by the Hon’ble Apex Court. The constitutionality of unlawful detention for mere
suspicion by police officer and the decision to arrest as of Part V of the Criminal
procedure Code,1973, and of the rules framed in consonance was constitutionally challenged before the court.
2.Here, the petitioner was 28 years old man who was enrolled as an
advocate.
3.The petitioner was called by theSenior Superintendent of
Police (SSP) of Ghaziabad in his office for making preliminary enquiries in
some case.
4.The petitioner appeared personally along with his brothers (Shri
MangeramChoudhary, Nahar Singh Yadav, Harinder Singh Tewatia, and Amar Singh)on
7 Jan.1994 at about 10 o’clock.
5.The Police officer kept the petitioner in his custody.
6.Thepetitioner’s brother made enquiries about the petitioner,
but the police officer lied and told them that the petitioner will be released in
the evening aftersome enquiries in connection with a case.
7.Petitioner’s brother received a rumour that the petitioner has
arrest regarding some criminal case and also further been shot dead by the
police authority in a fake encounter. Thepetitioner’s brother sent a telegram
letter to the Chief Minister of U.P in this concern on 7th Jan 1994(12:55
p.m.).
8.later in the evening of same day(7th Jan), it came
to the knowledge that the petitioner was detained illegally in the custody of
the (Station Housing Officer) of Mussoorie.
9.On 8 Jan1994, it was informed that the petitioner was detained
to make some enquiry. But, he was kept in detention without being produced
before the Magistrate concerned. Instead, the police officer directed the relatives
of the petitioner to the SHO of Mussoorie to approach the SSP of Ghaziabad for
release of the petitioner.
10. On 9 Jan 1994 (in the evening ), 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 undisclosed destination which remained with the
concerned police officer itself.
11.The police officers
claimed that the advocate was released as he was cooperating with them in the
enquiry of some Abduction related matter.Thus,there were no reason todetainsuch
person.
ISSUE
·
When an
arrest can be made and on what grounds?
·
Reason to
take such decisions to make an arrest.
Judgement
It was stated herein
that no arrest can be made as if it is lawful act for the police officer to do so
with the power that is granted to them. It was also mentioned that the existence
of the extend of the power to arrest andthe justifiable reason for the
performance of such exercise of it is to be taken into consideration with
logical relation. Hence, the police officer should stand in a state to justify
the arrest apart from being his one of the power to do so.
An arrest and detention
in police station can institute an irrevocable harm to the reputation of arrested
person . A person cannot be arrested merely on some random suspicion or an allegation
made to by unreliable source stating of commission of an offence made against him
randomly. It would be wiser fora police officer in the interest of protection
of the constitutional rights of a citizen and in his own interest as well, to
not to exercise arrest without reasonable satisfaction after some preliminary
investigation to find the genuineness of a complaint. And should acknowledge
that denying a person of his liberty is a serious issue of violatingbasic
fundamentals of constitution of our country.
The advocacy showcasethe
constitutional connections of the fundamental right to personal liberty and
freedom. A person is not liable to get arrested merely on the grounds of
suspicionarises in the complicity that evolve in an offence. There must be some
basic grounds in the opinion of the officer effecting to the arrest that such
arrest is needed as necessary and justified unless the said commission of the
crime is not containing the character of aheinous crime. Then the police
officer shall avoid an arrest instead he must issues a notice to a person to be
present in the police station and should not leave the police Station without
permission.
Here the rights mentioned
are fundamental rights which are
inherent in Articles 21 and 22(1) of the Constitution. These rights are
required to be recognized andsafeguarded in accordance with law. For effective
enforcement of these fundamental rights, the Hon’ble Court issued the following
guidelines:
(1)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 to be told as far as practicable that he has been
arrested and where he is being detained.
(2)The police
officer shall inform the arrested person of his rights when he is brought to
the police station.
(3) entry shall
be required to be made in the diary as to who was informed of the arrest. These
protections must be held to flow from Articles 21 and 22(1) must be enforced
strictly.
In furtherance,
the Magistrate isobliged to satisfy himself that theserequirements mentionedhave
been complied with.
Held
It was ruled by
the court that an arrest cannot be made on a mere suspicious allegation of
offence against a person or without any
genuine complaint and a proper investigation or some random presence of
complexity in a act. The Rights conferred on a person by the constitution
regulates that the petitioner is not arrested on simple suspicion of complicity
in an offence and cannot be arrested without a reasonable concurrentsatisfaction
beingobtained after some actual investigation to scrutinize the genuineness of
the complaint . The mentioned requirements must be complied in all the cases of
arrest untiland otherwise provided. The
court addressed to inculcate the requirements mentioned to be additionally
adjusted to the rights of the arrested persons in the respective various police
manuals. And was also stated that these mentioned requirements are not
exhaustive. Thus, the court directed to
issue necessary instructions in a manner to uphold these requirements to the
DGP(Directors General of Police) of all the States in India.
Conclusion
The constitutionality of unlawful
detention for mere suspicion by police officer needs to be substantiated
properly and the decision to arrest must be organized with genuine complaint
and a proper enquiry. Any personcannot be arrested without a reasonable concurrent
satisfaction being obtained after some actual investigation to scrutinize the
genuineness of the complaint on basis of seriousness of alleged wrong
0 Comments