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Date of Judgment: 25th April, 1994

Joginder Kumar, an advocate was called to the police station for conducting certain enquiry regarding a case. When he visited the police station for the enquiry he was illegally detained for 5 days without being produced before the magistrate. No details were available about the whereabouts of that person. A writ petition of Habeas Corpus was filed under Article 32 of the Indian Constitution. The police officers claimed that the advocate was not at all detained and was called for some enquiry relating a case.

The SC in this case directed the District Judge to make an enquiry and submit his report. Thus the following observations were made by the SC.

“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”

The judgment of Mr. Justice Cardozo which stated to take a balance of individual rights against society’s rights in People V Defore was also quoted in this judgment. Recommendations in Nandini Satpathy V. P.L.Dani were considered which stated “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.” In Couch V. United States “respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws”. The National Police Commissioner report observed that the arrest by the police in India is the chief source of corruption in them. An arrest of a public servant should be intimated to the superior officers. In case of arrest of members of Armed Forces, Army, Navy or Air Force should be sent to the officer commanding the unit. Miranda V. Arizona When a member of the Lok Sabha is arrested, detained, convicted or released; intimation should be given to the Speaker or chairman of the Assembly. About the apprehension of juvenile offenders, S.58 of CPC lays down the following: “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”.

In Children Act, S.19(a) made the following provisions: “[T]he 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;”. The Third Report of the National police Commission 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. 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……”

The above are the guidelines of personal liberty guaranteed under the constitution of India. The police officer who is authorized to arrest a person should justify his act. Arrest and detention can cause harm to the reputation and self-esteem of a person. Arrest cannot be made in routine manner and police officer should protect the constitutional rights of a citizen. A person cannot be arrested on the mere grounds of suspicion, there must be some reasonable of the grounds of arrest.

For enforcement of fundamental rights of citizens under Article 21 & 22(1) the court here issued certain requirements.

An arrested person in custody is entitled to request to have a person to know about his arrest and detention.

The police officer should inform the arrested person about this right

Entry should be made by the police officer in the dairy as to whom the information of arrest is made.

The magistrate before whom the arrested person is produced must satisfy himself that the above requirements are properly complied with. These requirements need to be carried out till a proper legal provision is made in this behalf. The Director General of Police in all states shall issue instructions to properly observe these requirements. The police officer shall also record the reasons of arrest in his case diary.

–  Priyadharshini R



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