Joginder Kumar vs State of UP 1994 AIR 1349, 1994 SCC (4) 260

Court: Supreme Court of India

Bench: 

• Chief Justice M.N.VENKATACHALLIAH. ,

• Justice S. MOHAN. ,

• Justice A.S.ANAND.

Parties:

Appellant: JOGINDER KUMAR 

Respondent: STATE OF U. P

Subject:

Powers of police to arrest and its exercise.

Facts:

• The plaintiff is a 28 year old man with a Bachelor of Laws degree. He was admitted to the bar after completing his Bachelor of Laws degree. The plaintiff was called to the office of the Senior Superintendent of Police, Ghaziabad to discuss several matters relating to the case. 

• The plaintiff appeared in court at about 10.00 a.m. on 7th January 1994 along with his brother Shri Mangalam Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others. The plaintiff was taken into custody. 

• When the plaintiff’s brother asked about the plaintiff he was told: The plaintiff was to be released that same evening after the matter was investigated. 

• Despite repeated interrogations, the plaintiff’s whereabouts became unknown at about 12.55 p.m. on 7th January, 1994. The plaintiff’s brother suspected his brother’s involvement in several criminal cases and had even shot the plaintiff dead in a fake encounter and was apprehensive of his intention to send a telegram to the Chief Minister of Uttar Pradesh. The plaintiff’s whereabouts could not be ascertained despite repeated interrogations. It was found that the plaintiff was taken against his will by the SHO on the night of 7th January, 1994. Ms. Mussoorie was taken into custody. 

• On 8th January, 1994, it was found that the fifth defendant had taken the plaintiff into custody and the plaintiff was undergoing further interrogation on certain matters. The plaintiff is yet to be produced before the Magistrate in Charge. 

• On the following evening, when the plaintiff’s brother and other family members made a posthumous visit to Mussoorie to check on the safety of her brother, it was found that the plaintiff had been taken to a secret location. In view of these facts, the plaintiff Joginder Kumar decided to seek release through this petition. 

• Due to the importance of the issues raised, the petition was treated as a writ petition. 

• On 11th January, 1994, this Court issued summons to the State of Uttar Pradesh and the SSP, Ghaziabad. On 14th January, 1994, both the said Senior Superintendent and the plaintiff appeared before this Court and the main issue here is as to why the plaintiff was kept in custody for five days and was not produced before any Magistrate.
  
  

Issues:-

In the case of Joginder Kumar v. State of Uttar Pradesh, several important issues were raised. These issues revolved around the rights of an individual during arrest and the limits of police power. The case highlighted the need to follow due process and protect the rights of an individual during arrest. The main questions in the case were:

Unlawful Detention:

The main issue in the case was the illegal detention of Joginder Kumar by the Senior Superintendent of Police (SSP) Ghaziabad. Though Mr. Joginder Kumar was summoned for investigation into the case, he remained in custody for five days without appearing before a magistrate.

Violation of Fundamental Rights:

The case raised concerns about violation of fundamental rights guaranteed in the Indian Constitution. Joginder Kumar’s right to liberty and protection from arbitrary arrest and detention was at stake.

Abuse of Police Power:

The case highlighted the potential for abuse of powers by the police. Joginder Kumar was detained without valid reason and without being produced before a judge, raising questions about the use of police powers.

Lack of Transparency:

The undisclosed location where Joginder Kumar was taken on the third day of his detention raised concerns about transparency and accountability in the arrest process.

Need for Guidelines:

This case highlighted the need for clear guidelines to govern the power of arrest and protect individual rights. In its judgment, the Supreme Court of India laid down guidelines known as the Joginder Kumar Guidelines to ensure that arrests are made in accordance with law and prevent abuse of power by the police. 

Importance of Habeas Corpus:

The filing of habeas corpus in this case highlighted the importance of this remedy in protecting individual liberty and challenging wrongful detention.

The case of Joginder Kumar v. State of Uttar Pradesh drew attention to issues surrounding arrest, police violence and protection of individual rights. This led to the formulation of policies that would have a lasting impact on the Indian criminal justice system. These guidelines serve as a reminder of the importance of protecting individual rights and ensuring that arrests are fair and lawful.

Contention of Appellant: –

The applicant appealed before the court challenging wrongful detention and non-disclosure of his location to persons with information and relatives.The applicant also questioned before the court whether the police have absolute powers to arrest and detain a person without cause and without giving the slightest hint or information to any authority or to the family/friends of the detainee.

Contention of Respondent: –

No question arises regarding the detention of the plaintiff as the defendants have ignored, lied and categorically denied it as the plaintiff had helped us in some cases related to Abduction and plaintiff was also very cooperative as well therefore no question comes regarding detention of petitioner. The defendants do not want this petition to be considered as a writ petition.

JUDGEMENT ANALYSIS:

TheHon’ble Supreme Court has discussed in detail various provisions of the Criminal Procedure Code and the report of the National Police Commission and passed a landmark judgment shedding light on several aspects of a person’s right to life with dignity, viz a vie detention. With this judgment, the Hon’ble Supreme Court has issued comprehensive rules and guidelines that police officers must adhere to in exercising their powers and duties. Arrest and detention can occur only for one or more of the following reasons and for no other:

1. Refusal by a person to identify himself/herself in order to refuse service of summons. 

2. 
   It is necessary to prevent the person from repeating the crime.

3. 
   The arrested or detained person needs to be protected from himself or herself or others.

4. 
   To preserve and secure evidence. Further, evidence should be obtained from the suspect through custodial interrogation.

5. 
   There is likeliness of his absence before the court of law 

The Hon’ble Supreme Court has laid down various guidelines regarding arrest and detention in this case, which are as follows: 

1. 
   Police should not make unnecessary arrests or detentions merely because they have the power to do so.

2. Police should never make arrests or detain a person without reasonable suspicion against the person arrested or detained or without reliable information. 

3. Arrest/detention violates the fundamental right to life under Article 21 and also violates Article 22(1) of the Constitution of India which provides that no person shall be detained without being informed of the reasons for his arrest/detention. 

4. 
   Except for violent crimes, no person may be arrested or detained solely on suspicion of complicity in a crime. 

5. Police must avoid making arrests until serious circumstances arise that may lead to the likelihood that the person involved will evade arrest, destroy evidence, or pose a danger to society. 

6. Police should instead issue summonses in accordance with S. 41-A Cr.P.C., to report to the police station and appear where required. 

7. 
   The Constitution enshrines fundamental rights and Articles 21 and 22(1) provide that any person arrested/detained shall have the right to be informed of persons who may know him or whose welfare may be interested. I am interested in any person arrested/detained. Information about who has been informed of the arrest/detention must be recorded in a diary kept by the police. 

8. 
   The Supreme Court also referred to the right to consult a private lawyer available in the UK under section 56(1) of the Police and Criminal Evidence Act 1984. 

9. 
   The judge before whom the arrestee is produced is bound to satisfy himself that the requirements laid down by the Supreme Court have been fulfilled. The Supreme Court also relied on the Third Report of the National Police Commission which revealed that “the arrest power of the police is the main cause of corruption in India”. It also revealed that unnecessary and unjustified arrests and detentions account for 43.2% of prison expenditure in India, which is an exploitation of government revenue and taxes of the people. Therefore, there should be no unnecessary and wrongful arrests and detentions. This power must be used in strict accordance with the law and its procedures.

CONCLUSION:
The Supreme Court has categorically stated that routine arrest is not possible. Routine arrest violates the fundamental rights of citizens and therefore violates the tenets of the Constitution. In addition to various Supreme Court rulings, the  Criminal Procedure Amendment Act, 2008 has also provided ample safeguards to ensure  lawful and judicious exercise of the power of arrest (for example, through the insertion of Section 41A  mentioned above). However, the only thing missing is strict implementation. It is important for the police to be aware of the limits within which they can exercise the power of arrest and any arbitrary exercise of this power should be punished with serious consequences.