CASE 1: ARNESH KUMAR V STATE OF BIHAR [(2014) 8 SCC 273]
SUBJECT: Need for auction while exercising power of arrest and detention of the accused.
(1)ISSUES COVERED:
- Hon’ble Supreme Court, India emphasized need for caution by:
- POLICE, while-
- Exercising power of arrest of the accused, and
- MAGISTRATE, while-
- Ordering or authorizing, detention of the accused.
- POLICE, while-
(the arrest and or detention ought not to be done in ‘MECHANICAL MANNER.’)
(2)SITUATION: An offence committed is cognizable and non-bailable.
- CONSEQUENCE: Arrest is not mandatory, unless- reasonable grounds persist.
(3)SITUATION: The mode or procedure of arrest is illegal.
- CONSEQUENCE: Magistrate should not ordinarily authorize detention.
DIRECTIONS (Passed by Hon’ble Supreme Court):
(1)All State Government to instruct it’s police officers:
- not to automatically arrest case registered under section 498A, Indian Penal Code, 1860,
- but to satisfy themselves.
(2)All police officers be provided with check list containing specified sub-clauses under section 41(1)(b)(ii).
(3)SITUATION: While forwarding or producing accused before Magistrate for further detention.
CONSEQUENCE: Police officer shall forward,
- duly, filed and furnished check list,
- containing, reasons and material, necessitated arrest.
(4)SITUATION: Magistrate while authorizing detention of the accused.
CONSEQUENCE: Magistrate shall:
- peruse the report furnished, by Police officer, in terms aforesaid, and
- only after recording it’s satisfaction, will authorize detention.
(5)SITUATION: An accused not arrested.
- CONSEQUENCE: It is mandatory to forward;
- decision within 2 week from date of institution of the case, and
- copy extended by Superintendent of Police,
- to Magistrate,
- with reasons to be recorded in writing.
(6)Notice of appearance in terms of section 41:
- shall be served on the accused, within 2 weeks, from the date of institution of the case,
- may be extended by Superintendent of Police, of the District, for reasons to be recorded in writing.
(7)SITUATION: Police officer fails to comply with directions aforesaid.
CONSEQUENCE: Police officer shall:
- for departmental action,
- to be punished for contempt of Court,
- to be instituted before High Court, having territorial jurisdiction.
(8)SITUATION: Detention authorized without recording reason, as aforesaid by concerned Judicial Magistrate.
CONSEQUENCE: The Judicial Magistrate shall be liable for department action by appropriate the High Court.
CASE 2: JOGINDER SINGH V STATE OF UTTAR PRADESH [1994 SCC (4) 260]
SUBJECT: No arrest can be made because:
- It is lawful, or
- Made on mere allegation or in a routine manner, an offence against a person.
FACTS:
(1)The petitioner, Joginder Kumar, 28 a young lawyer,
- was called to the office of the Senior Superintendent of Police (SSP), Ghaziabad,
- in connection with some inquiries.
(2)He was accompanied by friends and his brother, who were told by the police that he would be released in the evening,
- but he was taken to a police station with the assurance that he would be released the next day.
(3)Next day, too he was not released as the police wanted his help in making further inquiries.
(4)On the third day, when his father went to the police station, they found that he had been taken to an undisclosed location.
(5)In effect, Joginder Kumar was illegally detained over a period of five days.
(6)His family had to file habeas corpus writ petition with the Supreme Court to find out his whereabouts.
(7)The Court issued notice to the State of Uttar Pradesh and to the SSP,
- to immediately produce Joginder Kumar, and
- answer:
- why he was detained for 5 days without a valid reason,
- why his detention was not recorded by the police in its diary, and
- why he was not produced before Magistrate.
SUPREME COURT HELD:
(1)No arrest can be made, because:
- it is lawful, or
- made on mere allegation or in a routine manner, an offence against a person.
(2)It’s a person’s mandatory constitutional rights, that-
- he must not be arrested on simple suspicion of complicity in an offence.
(3)Moreover, an arrest cannot be made-
- after a reasonable satisfaction reached after some investigation is made,
- as to the genuineness of the complaint.
COURT GUIDELINES:
(1)An arrested person being held in custody, is entitled (if he requests),
- to have 1 friend, relative or other persons, who is:
- known to him, or
- likely to take an interest in his welfare,
- whom, it is being told (as far as practicable), that-
- he has been, arrested and
- where, he is being detained.
(2)An arrested person shall be informed:
- regarding, this rights,
- when, he is brought to police station,
- by, the police officer.
(3)Under the power flowing from Article 21 and 22(1),
- there are some protections-
- an entry shall be required to be made in the diary (which, must be held and enforced strictly),
- regarding, who was informed of the arrest.
(4)Duty of magistrate:
- before whom, arrested person is produced,
- to satisfy himself, that these requirements have been complied with.
CASE 3: KHATRI V STATE OF BIHAR [1981 AIR 1068]
SUBJECT: How to make, the provision of the arrested person to produce the arrested person before magistrate within 24 hours work?
Supreme Court strongly urged upon:
(1)The State and it’s Police authorities:
- to ensure that, this constitutional and legal requirements, to produce the arrested person before magistrate within 24 hours.
(2)Magistrate’s participation, in this provision:
- enables him, to keep check over police investigation,
- build necessity at his part:
- to enforce requirement, and
- if requirement found being disobeyed, to come heavily upon the police.
(3)Police officer’s liability:
- if, fails to produce arrested person, before magistrate within 24 hours of the arrest,
- he shall be held guilty of wrongful detention.
CASE 4: POOVAN V SUB- INSPECTOR OF POLICE [1993 CriLJ 2183]
SUBJECT: Magistrate’s proceedings, when the arrested person, within his jurisdiction is not presented to him within 24 hours or detained beyond 24 hours.
SITUATION: Whenever a complaint:
- Is required by Magistrate that a person is arrested within his jurisdiction but has not been produced before him with 24 hours, and
- Has made to magistrate that a person is being detained within his jurisdiction beyond 24 hours of his arrest.
CONSEQUENCE:
- He can and should call upon the police office concerned,
- to state, whether allegations are true,
- if, found true on what and under whose custody he is being so held,
- if, police officer denies the arrest magistrate can:
- make an inquiry into the issue and
- pass appropriate orders.
CASE 5: DK BASU V STATE OF WEST BENGAL [(1997) 1 SCC 416]
SUBJECT: Custodial deaths
FACTS:
(1)DK Basu, Executive Chairman of the Legal Aid Services cell, West Bengal. He addressed a letter to the Chief Justice of India:
- requesting him to draw his attention to certain news articles published concerning the deaths in police lock-ups and custody, and
- requested the authorities to treat it as a Writ Petition within the “Public Interest Litigation” category.
(2)Considering the relevancy of the issues raised in the letter:
- it was treated as a Writ Petition and
- notice was served to the Respondent which was the State of West Bengal.
(3)While the letter was under consideration, one Mr. Ashok Kumar Johri addressed another letter to CJI, drawing his concern to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. It also got treated as a writ petition and was listed along with the petition of DKBasu.
(4)The Court made an order by issuing notices to:
- all the State Governments and
- the law Commission of India,
- requesting suitable suggestions within a period of 2 months.
SUPREME COURT GUIDELINES,(to be followed while making arrest)-
(1)Police personnel, carrying out arrest and handling interrogation of arrestee,
- should bear, accurate, visible and clear identification:
- name tags, and
- designations.
(2)Police officer carrying out arrest shall prepare, Memo of Arrest, which shall be attested by at least 1 witness,
- Such witness may be:
- a member, of family of the arrestee, or
- a respectable person of the locality, from where arrest is made.
(3)SITUATION: Person:
- has been arrested or detained,
- is being held in custody in:
- Police station,
- Interrogation center, or
- other lock up.
CONSEQUENCE:
- He shall be entitled to have one friend, relative or other person,
- known to him or having interest in his welfare,
- being informed (as soon as practicable), that:
- he has been arrested, and
- is being detained at the particular place,
- unless: The attesting witness of the memo of arrest, to himself such a friend or relative of arrestee.
(4)SITUATION :
- Where the next friend or relative of the arrestee lives outside district or town.
CONSEQUENCE:
- The time, place and venue of custody of an arrestee,
- must be notified by police, through:
- legal aid in the District, and
- police station of the concerned area, telegraphically,
- within period of 8- 12 hours, after the arrest.
(5)Person arrested must be aware of his rights,:
- to have someone informed of his arrest and detention, as soon as he is put under arrest or detention.
(6)An entry must be made in diary, at the place of detention, regarding:
- arrest of the person,
- name of the next friend of person, who has been informed of arrest,
- name and particulars of police officer in whose custody arrestee is.
(7)Arrestee should be:
- examined (where he requests), at the time of arrest, and
- any major and minor injuries (if any) present on his or her body, must be recorded.
(8)Inspector’s memo, must be:
- signed, by arrestee and police officer, affecting arrest, and
- copy, is to be provided to the arrestee.
(9)Arrestee should be subjected to medical examination:
- by, trained doctor,
- every, 48 hours,
- during, his detention in custody.
Examined by a doctor, on the panel of approved doctors:
- appointed by Director, Health Services of concerned State or Union Territory,
- prepared for all tehsils and districts.
(10)Copies of all documents should be sent to Magistrate for his record.
(11)Arrestee:
- may be permitted to meet his lawyer during interrogation,
- though not throughout interrogation.
(12)Police control room, should be provided:
- at, district and state headquarters,
- for communicating information:
- regarding arrest and place of custody of arrestee,
- by, officer, causing the arrest, within 12 hours of effecting arrest,
- should be, displayed on conspicuous notice board in police control room.
CASE 6: BINOY JACOB V CBI [1993 Cri LJ 1293 (Del)]
SUBJECT: Extent of Investigating agency’s discretion.
Delhi High Court opinioned that-
- in a country, governed by rule of law,
- discretion of investigating agency does not mean:
- whim,
- fancy, or
- wholly arbitrary exercise of discretion,
- in all cases, where arrest are made by investigating agency,
- however, Cr.P.C contemplates judicial scrutiny soon after such an arrest.
CASE 7: In RE MADHU LIMAYE [AIR 1969 SC 1014]
SUBJECT:
- What Article 22(1) represents?
- Purpose of the 2 requirements under Article 22(1)?
FACTS:
- Madhu Limaye, Member of the Lok Sabha and several other persons were arrested.
- Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that, ‘he along with his companions had been arrested but had not been communicated the reason or the grounds for arrest.’
- One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of article 22(1) of the Constitution.
SUPREME COURT OBSERVATIONS:
- Article 22(1), embodies a rule which has always been-
- regarded as vital and fundamental,
- operated for safeguarding personal liberty,
- in all legal systems, where rule of law prevails.
- Two requirements of Article 22(1), are meant to, afford arrested person with earliest opportunity, to-
- remove any mistake, misapprehension, or misunderstanding,
- know exactly what accusation is against him,
- let him exercise, the 2nd right of:
- consulting a legal practioner of his choice, and
- getting defended by him.
CASE 8: NILABATI BEHERA V STATE OF ORISSA [(1993) 2 SCC 746]
Subject: Custodial death, practices of police officials and compensation of victims of unlawful arrest and detention.
FACTS:
- According to the factual matrix, the person was inflicted with several injuries while in custody which resulted in his death.
- Then the police officials in order to cover the death put him on the railways track and tried to protect themselves by presenting false evidence.
- Thus, the present case deals with the practices observed by the police officials who are supposed to be the protectors of life and liberty of the people.
SUPREME COURT HELD:
- Supreme Court directed, respondent State of Orissa to pay sum of-
- Rs. 1,50,000 to the petitioner, and
- Rs. 10,000 to Supreme Court legal Committee
- Supreme Court recognized:
- the right of compensation of victims of unlawful arrest and detention.
HERE, THIS SERIES ON ARREST COMES TO AN END.
Farheen Dhanjal 