~AASHKA SHAH


CASE NO. –  WP Crl. No. 9/1994

PETITIONER’S ADV- Mohd. Yunus Malik and L. R. Singh

RESPONDENT’S ADV- A. S Pundir

BENCH- M. N. Venkatchaliah, CJI and S. Mohan and Dr. A. S Anand, JJ.

JUDGEMENT BY-M. N. Venkatchaliah, CJI.


FACTS:

An advocate was called to the police station with reference to inquiries in a case. He was detained while his companions were told to leave after being informed that he would be freed later on that day. A few days later it came to the notice that the advocate was being detained without the production before the concerned Magistrate. When the brother of the advocate wished to inquire about his well being, it was found that the advocate was taken to an undisclosed place. A petition under Article 32 was filed in the Supreme Court.

The police officers claimed that the advocate was released and there was no question of detaining him as he was cooperating with them in some abduction related matter.

OBSERVATIONS MADE BY THE COURT IN THIS CASE:

  1. The questions of the detention of the petitioner for five days, why was the Court not informed if the petitioner was not detained and the reason for such detention were posed in front of the Court.
  2. 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; of simply deciding what is 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.
  3. The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law.
  4. Arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.
  5. 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.
  6. 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.
  7. Critically important relationship between the police and the public in the detection and investigation of crime must be based on the principle standards of fairness, openness and workability.
  8. 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.
  9. An arrested person has right to have his relative or friend being informed about the fact, time and place of arrest.
  10. An entry must be made in the diary as to who was informed of the arrest

HELD:

Increasing horizon of Human Rights Vs. Increase in crime rate

With the increase in the cases of human rights violation, the Apex Court tried to strike balance between the two.  The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law. This was confirmed by Judge Learned Hand, in Fried Re and relied by this Court:

“The 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.”

There always 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. Lewis Meyer’s words as quoted in Nandini Sathpathy case, AIR 1978 SC 1025 were reproduced with approval:

‘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.’

Then the Court discussed the Third repost of National Police Commission that stated power of arrest as one of the chief sources of corruption in the police and said that a staggering number of arrests(nearly 60%) were either unjustified or unnecessary.

Power to Arrest

It was held that an arrest cannot be made merely because it is lawful for the Police Officer to do so. An arrest cannot be made in a routine manner on mere allegation of offence. In view of citizen’s constitutional rights and police officer’s own interests, it would be prudent of an officer to not make an arrest.

  1. As to the person’s complicity in an offence
  2. As to the need to arrest

Along with reasonable satisfaction reached after some investigation done to find out the genuineness of a complaint.

It was also held that denying a person his liberty is a serious matter and the officer arresting the person ought to have necessary and justifiable reasons for such arrest. Mere suspicion of complicity in an offence does not qualify as a factor for a person’s arrest. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. 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.

Article 21 and Article 22(1) of the Constitution inherently recognizes arrested person’s right to have someone informed upon request and to consult a lawyer.

The Court also laid down the following guidelines:

  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.

It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

These requirements are to be followed until legal provisions are made in this behalf. Also these requirements are in addition to the requirements already provided in 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.


About the author: Aashka is a second-year B.B.A.LL.B student at Gujarat National Law University, Gandhinagar.


 

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