Case Comment

Joginder Kr. V. State of U.P AIR 1994 SC 1349

Acts: - CrPC & Constitution (Art. 21 & 22(1))
Facts: - Petitioner advocate was called by SSP Ghaziabad to his office for
enquiries in some case. While he appeared, he was kept in custody and upon
enquiry by his brother, the SSP stated that he would be set free in the evening
after making enquiries.
The brother apprehended implication of the petitioner in some Criminal Case
as well as his fake encounter and sent a telegram to the C.M. of U.P. disclosing
the episode.
Upon enquiry in the evening it was disclosed that petitioner was detained in
illegal custody of SHO P.S. Mussorie.
On the following day, it was informed that the petitioner was in custody of the
SHO P.S. Mussorie and was not produced before the concerned Magistrate.
On the third day, evening, the brother of the petitioner was informed by the
SHO P.S. Mussorie that the petitioner had been taken to undisclosed
destination.
Under the above circumstances the petition U/ Art. 32 constitution was
preferred for the release of the petitioner, Joginder Kumar.
Statement of the police: - SSP appeared along with petitioner in the court and
informed about his release. It was also stated that, he was not in detention
rather was helping the police in detecting some cases relating to abduction.
The concern of the state: - Although relief in the writ petition could not be
granted, yet the court was concerned about the following: -
a. Why was it not informed if the petitioner was not in detention?
b. If there was a detention for five days, for what reason he was
detained?
In respect of issues (a) & (b) the District Judge Ghaziabad was entrusted to
enquire and submit a report within four weeks of the receipt of the order.
Decision: - The court took note of the following aspects and relied on relevant
authorities for interpreting law in relation to unlawful detention.
1. There is need to strike a balance between expanding horizon of human
rights and increasing Crime rate.
2. Individual rights, liberties and privileges have to be balanced against
individual duties, obligation and responsibilities of the other. The law of
arrest is one of balancing the opposites and the exclusion rule is a bad
law as was observed by Justice Cardozo in People v. Lefore wherein he
had remarked that society came first and criminal should not go free
because constable blundered.
3. In Re Fried: - Protection of individual from oppression and abuse by
police and enforcing officers is a major interest, so is the effective
prosecution of crime. Perfection is impossible, so criminal proceedings
must be a compromise.
4. The quality of a nation’s civilization can be largely measured by the
methods used in enforcement of Criminal Law.
5. Nandini Satpathy v. P.L. Dani
There is a rivalry between social interest in effecting crime detection and
constitutional rights of the accused. In light of circumstances, emphasis
may shift in balancing these interests.
6. Miranda (1966) 332 U.S. 436
There has been retreat from stress on protection of accused and
gravitation towards society’s interest in convicting law breakers and the
trend in the American Jurisdiction is that respect for constitutional
principles is eroded when they leap their proper bounds to interfere
with legitimate interests of society in law enforcement.
The constitutional perspective, accordingly has to be relative and not
absolutist especially in light of torture technology, crime escalation and
other social variables affecting application of principles in producing
human justice.
7. The national Police Commission in its third report suggested that about
60% of arrests by police were unjustified or unnecessary and that
accounted for 43.2% of the expenditure of the jails.
8. Whenever a public servant is arrested, matter should be intimated of the
superior officer before and immediately after the arrest.
9. Under Rule 229 of the Procedure and conduct of Business in Lok Sabha,
when a member is arrested/ detained the executive authority must
inform such fact to the speaker, without delay.
 10. In case of arrest/ detention/ conviction/ release intimation should be
sent to Govt. concerned with an intimation to speaker/ Chairman of
Legislative Assembly/ Council/ Lok Sabha/ Rajya Sabha through
telegrams and by post and intimation should not be postponed on the
ground of holiday.
11. S. 58 Cr.P.C. casts a duty on OIC of a PS to report about all
apprehensions of persons without warrant to the DM/ SDM when
authorized with respect to their release on bail or otherwise.
12. S. 19(a) of the Children Act also provides for intimation to parent/
guardian about child’s arrest and for direction to be present at the
children’s court before which the child will appear.
13. Royal commission on criminal Procedure: -
a. In course of important relation between police and public in
detection and investigation of crime. The public confidence in
police power require that these conform to three principal
standards: fairness, openness and workability.
b. Restrictions are required on power of arrest on the basis of
‘necessity of principle’ as follows-
I. Police can exercise powers only when genuinely necessary
to enable them to execute their duty to prevent
Commission of offences, and
II. To investigate Crime
According to the royal commission the above restrictions would diminish the
use of arrest and produce more uniform use of powers.
c. Detention upon arrest for an offence should continue only one or
more of the following criteria: -
I. Unwillingness to identify himself so that summons may be
served
II. Preventing continuance/ repetition of offence
III. The need to protect arrested person/ other person/
property
IV. The need to secure/ preserve evidence relating to offence.
V. The likelihood of person’s failing to appear at court.
d. The royal commission in its report on criminal Procedure (1981)
had also suggested to introduce scheme of Appearance Notice to
reduce the use of arrest and serve various purposes like finger
printing, identification parade and interview etc.
 14. Report of the National Police Commission: -
Arrest during investigation of a cognizable case can be justified,
considered in case of inn following circumstances: -
a) Incase of grave offence when it is necessary to arrest accused &
restrict his movements to infuse victim’s confidence
b) When accused is likely to abscond and evade process of law
c) When accused being of violent behavior is likely to commit further
offences, and
d) When the accused is a habitual offender
The report also mentioned the need for departmental instructions to
the police officer to record, in case diary the reasons for making the
arrest and clarifying conformity to the guidelines.
Decision: -
Arrest of a person may violate the Constitutional rights guaranteed in Art. 21 &
22(1) which require to be recognized and scrupulously protected. For effective
enforcement of the fundamental rights, the court issued the following
requirements: -
a) The right to be intimated to friend/ relative/ other person known/ likely
to take interest in welfare about facts of arrest and detention
b) The right to be informed about the right as in (a)
c) The mandatory duty to make an entry in the Diary about the person
informed of arrest.
d) The mandatory duty of the magistrate to satisfy the observance of the
requirements up on his production.
Order: -
a) The requirements (a) to (d) to be mandatory to follow in all cases of
arrest till legal provisions were made.
b) The requirements (a) to (d) are in addition to rights of arrestee dealt in
police manuals.
c) The DGP of all the states in India to issue necessary instructions for due
observance of these requirements.
d) Departmental instruction to be issued that a police officer making an
arrest should also record reasons in the case diary.
From: - Dr. P. K. Shukla