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Report No. 152

5.8. Guidelines suggested by the Supreme Court.-

In the case of Joginder Kumar v. State of Uttar Pradesh, JT (1994) 3 SC 423 (430), which we have referred to in the preceding paragraph, the court (paragraph 24 of the judgment) took pains to point out that an arrest cannot be made, merely becauSe it is lawful for the police officer to do so. The existence of the power is one thing, while the exercise of the power quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention may cause incalculable harm to the reputation and self-esteem of a person. The court made the following observations in this behalf:

"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 person is not liable to arrest merely on 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."

In paragraph 26 of its judgment, the Supreme Court set out the requirements as under:-

"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 requirements:

1. 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 he is being detained.

2. The police officer shall inform the arrested person when he is brought to the police station of this right.

3. 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."



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