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Report No. 177

Again in para 21, at page 1033, it has been observed:

"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. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda ((1966) 334 US 436) there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting lawbreakers.

Currently, 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 States (1972) 409 US 322, 336). 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 decision also refers to the recommendations of the National Police Commission, which are set out elsewhere in this Report.

The decision in Joginder Kumar proceeded to observe:

"The Royal Commission suggested restrictions on the power of arrest on the basis of the 'necessity of 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 Procedur.- Sir Cyril Philips, at page 45 said:

"We recommend that detention upon arrest for an offence should continue only on one or more of the following criteria;

(a) the person's unwillingness to identify himself so that a summons may be served upon him;

(b) the need to prevent the continuation or repetition of that offence;

(c) the need to protect the arrested person himself or other persons or property;

(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and

(e) the likelihood of the person failing to appear at court to answer any charge made against him."*

*. Many of the recommendations of the Philips Committee, it may be mentioned, find place in the Police and Criminal Evidence Act, 1984 and the Codes of Practice issued thereunder, in U.K. Broadly speaking, the recommendations of the Philips Report can be summarized as saying that any new law governing police powers should meet the standards of "fairness", "openness" and "workability". Inter alia, the Report recommended a power of detention after arrest for the purpose of questioning; at the same time, it recognized the right of the accused to remain silent during such questioning.

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