Joginder Kumar vs State Of U.P(1994)

Petitioner - The petitioner was a young man of 28 years of age who had completed his LL.B. and had enrolled himself as an advocate.

Respondent 4 - Senior Superintendent of Police, Ghaziabad
Respondent 5 - SHO, Police Station. Mussoorie

Facts:
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 four brothers before Respondent 4. Respondent 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.

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.

In 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.

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.

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.

Presentation Of Petition
Under these circumstances, the petition was preferred for the release of Joginder Kumar, the petitioner herein. Petition was under Article 32 of the Constitution of India.

Appearance:
The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994.

Justification For Arrest and Power to Arrest:
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.

A 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 issue notice to person to attend the Station House and not to leave the Station without permission would do.

Guideline By Apex Court
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.

Reference:

1. Joginder Kumar vs State Of U.P(1994)

Written By: Akshat Bhararia, a Seventh Semester student of College MLSU, Udaipur.