Kumar Vs. State of U.P  INSC 259 (25 April 1994)
M.N.(Cj) Venkatachalliah, M.N.(Cj) Mohan, S. (J) Anand, A.S. (J)
1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662
This is a petition under Article 32 of the Constitution of India. The
petitioner is a young man of 28 years of age who has completed his LL.B. and
has enrolled himself as an advocate. The Senior Superintendent of Police, Ghaziabad, Respondent 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 Shri Mangeram Choudhary, Nahar
Singh Yadav, Harinder Singh Tewatia, Amar Singh and others before Respondent 4.
4 kept the petitioner in his custody. When the brother of the petitioner made
enquiries about the petitioner, lie was told that the petitioner will be set
free in the evening after making some enquiries in connection with a case.
2. On 7-1-1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of
Respondent 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.
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. Mussoorie.
4. 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 the
petitioner has not been produced before the Magistrate concerned. Instead the
5th respondent directed the relatives of the petitioner to approach the 4th
respondent SSP, Ghaziabad, for release of the petitioner.
5. On 9-1-1994, in the evening when the brother of petitioner along
with relatives went to P.S. Mussoorie 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.
This Court on 11-1-1994 ordered notice to State of U.P. as well as SSP, Ghaziabad.
said Senior Superintendent of Police along with petitioner appeared before this
Court on 14-1-1994.
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 cooperating with the police.
Therefore, there is no question of detaining him. Though, as on today 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.
really, there was a detention for five days, for what reason was he detained?
These matters require to be enquired into. Therefore, we direct 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.
horizon of human rights is expanding. At the same time, the crime rate is also
increasing. Of late, this Court has been receiving complaints about violation
of human rights because of indiscriminate arrests. How are we to strike a
balance between the two? 9. A realistic approach should be made in this
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 264 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 forthrightly 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 came
first, and that the criminal should not go free because the constable
People v. Defore1 Justice Cardozo observed:
question is whether protection for the individual would not be gained at a
disproportionate loss of protection for society. On the one side is the social
need that crime shall be repressed. On the other, the social need that law
shall not be flouted by the insolence of office. There are dangers in any
choice. The rule of the Aclams case (People v. Adams2) strikes a balance
between opposing interests. We must hold it to be the law until those organs of
government by which a change of public policy is normally effected shall give
notice to the courts that change has come to pass."
the same effect is the statement by Judge Learned Hand, in Fried Re3:
protection of the individual from oppression and abuse by the police and other
enforcing officers is indeed a major interest in a free society; but so is the
effective prosecution of crime, an interest which at times seems to be
forgotten. Perfection is impossible; like other human institutions criminal
proceedings must be a compromise." The quality of a nation's civilisation
can be largely measured by the methods it uses in the enforcement of criminal
This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p. 1032) quoting Lewis Mayers
stated: (SCC p. 433, para 15) "The paradox has been put sharply by Lewis Mayers:
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.' " Again (in AIR para
2 1, at p. 1033) it was observed: (SCC p. 436, para 23) "We have earlier
spoken of the conflicting claims requiring reconciliation. Speaking
pragmatically, there exists a rivalry between societal interest in effecting
crime detection and constitutional rights which accused individuals possess.
may shift, depending on circumstances, in balancing these interests as has been
happening in 1 242 NY 13, 24 : 150 NE 585, 589 (1926) 2 176 NY 351 : 68 NE 636
(1903) 3 161 F 2d 453, 465 (2d Cir 1947) 4 (1978) 2 SCC 424 : 1978 SCC (Cri)
236 : AIR 19'78 SC 1025, 1032 265 America. Since Miranda5 there has been
retreat from stress on protection of the accused and gravitation towards
society's interest in convicting law-breakers.
the trend in the American jurisdiction according to legal journals, is that
'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...'. (Couch v. United StateS6). 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."
The National Police Commission in its Third Report referring to the quality of
arrests by the police in India mentioned power of arrest as one of
the chief sources of corruption in the police. The report suggested that, by
and large, nearly 60% of the arrests were either unnecessary or unjustified and
that such unjustified police action accounted for 43.2% of the expenditure of
the jails. The said Commission in its Third Report at p. 31 observed thus:
is obvious that a major portion of the arrests were connected with very minor
prosecutions and cannot, therefore, be regarded as quite necessary from the
point of view of crime prevention. Continued detention in 'ail of the persons
so arrested has also meant avoidable expenditure on their maintenance. In the
above period it was estimated that 43.2 per cent of the expenditure in the
connected jails was over such prisoners only who in the ultimate analysis need
not have been arrested at all." As on today, arrest with or without
warrant depending upon the circumstances of a particular case is governed by
the Code of Criminal Procedure.
Whenever a public servant is arrested that matter should be intimated to the
superior officers, if possible, before the arrest and in any case, immediately
after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force,
intimation should be sent to the Officer commanding the unit to which the
member belongs. It should be done immediately after the arrest is effected.
Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a
member is arrested on a criminal charge or is detained under an executive order
of the Magistrate, the executive authority must inform without delay such fact
to the Speaker. As soon as any arrest, detention, conviction or release is
effected intimation should invariably be sent to the Government concerned
concurrently with the intimation sent to the Speaker/Chairman of the Legislative
Assembly/Counc il/Lok Sabha/Rajya Sabha. This should be sent through telegrams
and also by post and the intimation should not be on the ground of holiday.
Miranda v. Arizona, 384 US 436: 16 L Ed 2d 694 (1966) 6 409 US
322,336: 34 LEd 2d 548(1973) 266
With regard to the apprehension of juvenile offenders Section 58 of the Code of
Criminal Procedure lays down as under:
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."
Section 19(a) of the Children Act makes the following provision:
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
England, the police powers of arrest, detention and interrogation have been
streamlined by the Police and Criminal Evidence Act,' 1984 based on the report
of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal
Procedure, Command-papers 8092 1981 1).
is worth quoting the following passage from Police Powers and Accountability by
John L. Lambert, p. 93:
recently, the Royal Commission on Criminal Procedure recognised that 'there is
a critically important relationship between the police and the public in the
detection and investigation of crime' and suggested that public confidence in
police powers required that these conform to three principal standards:
fairness, openness and workability." (emphasis supplied)
The Royal Commission suggested restrictions on the power of arrest on the basis
of the "necessity of (sic) principle". The two main objectives of
this principle are that police can exercise powers only in those cases in which
it was genuinely necessary to enable them to execute their duty to prevent the
commission of offences, to investigate crime. The Royal Commission was of the
view that such restrictions would diminish the use of arrest and produce more
uniform use of powers. The Royal Commission Report on Criminal Procedure Sir
Cyril Philips at p. 45 said:
we recommend that detention upon arrest for an offence should continue only on
one or more of the following criteria:
person's unwillingness to identify himself so that a summons may be served upon
need to prevent the continuation or repetition of that offence;
need to protect the arrested person himself or other persons or property;
need to secure or preserve evidence of or relating to that offence or to obtain
such evidence from the suspect by questioning him; and
likelihood of the person failing to appear at court to answer any charge made
against him." 267 The Royal Commission in the above said report at p. 46
help to reduce the use of arrest we would also propose the introduction here of
a scheme that is used in Ontario enabling a police officer to issue
what is called an appearance notice. That procedure can be used to obtain
attendance at the police station without resorting to arrest provided a power
to arrest exists, for example to be fingerprinted or to participate in an
could also be extended to attendance for interview at a time convenient both to
the suspect and to the police officer investigating the case......
India, Third Report of the National
Police Commission at p. 32 also suggested:
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 terrorstricken 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.
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 guidelines are merely the incidents of
personal liberty guaranteed under the Constitution of India. 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 268 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.
Then, there is the right to have someone informed.
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 (Civil Actions Against the Police
Richard Clayton and Hugh Tomlinson; p. 313). That section provides:
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." 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, we issue the following
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.
police officer shall inform the arrested person when he is brought to the
police station of this right.
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.
shall be the duty of the Magistrate, before whom the arrested person is
produced, to satisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal
provisions are made in this behalf.
requirements shall be in addition to the rights of the arrested persons found
in the various police manuals.
These requirements are not exhaustive. The Directors General of Police of all
the States 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.