Joginder Kumar v. State of U.P.

A young advocate was kept by the police for five days after he went to answer questions. He was not produced before a Magistrate, and his family could not trace him. The Supreme Court used his habeas corpus (a court order to produce a detained person) petition to set out when police may arrest and what an arrested person is entitled to.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy). This page was prepared from IndianKanoon's copy of the text.

Parties

Joginder Kumar — petitioner; a 28-year-old man who had completed his LL.B. and enrolled as an advocate.

State of U.P. — respondent; the State whose police officers held the petitioner.

Respondent 4, the Senior Superintendent of Police (SSP), Ghaziabad — the officer who called the petitioner to his office.

Respondent 5, the Station House Officer (SHO), P.S. Mussoorie — the officer said to be keeping the petitioner in detention.

Procedural History

1. The petitioner came to the Supreme Court directly with a writ (a court's formal order) petition under Article 32 of the Constitution (para 1).
2. On 11 January 1994 the Court ordered notice to the State of U.P. and the SSP, Ghaziabad (para 6).
3. On 14 January 1994 the SSP appeared before the Court with the petitioner. He said the petitioner had been released (para 7).
4. The Court did not close the petition. It directed the District Judge, Ghaziabad, to make a detailed enquiry and report within four weeks of receiving the order (para 7).
5. The judgment was given as an order on 25 April 1994 (the header gives the date of judgment).
6. The judgment records no earlier decision by any High Court. Joginder Kumar's petition was the first and only court proceeding it describes.

Facts

1. The petitioner was 28 years old, had completed his LL.B. and had enrolled as an advocate (para 1).
2. The SSP, Ghaziabad, called him to his office to make enquiries in some case (para 1).
3. On 7 January 1994, at about 10 a.m., the petitioner appeared personally with his brothers before the SSP. The brothers were Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others (para 1).
4. The SSP kept the petitioner in his custody. His brother was told that the petitioner would be set free in the evening after enquiries in connection with a case (para 1).
5. At about 12.55 p.m. on 7 January 1994 the brother sent a telegram to the Chief Minister of U.P. He feared the petitioner would be implicated in a criminal case and shot dead in a fake encounter (para 2).
6. Despite frequent enquiries, the family could not find the petitioner. On the evening of 7 January 1994 they learnt that he was in illegal custody of the 5th respondent, SHO, P.S. Mussoorie (para 3).
7. On 8 January 1994 the family was told that the 5th respondent was detaining him for further enquiries in some case. He had not been produced before the Magistrate. The 5th respondent told the relatives to approach the SSP, Ghaziabad, for his release (para 4).
8. On the evening of 9 January 1994 the brother and relatives went to P.S. Mussoorie. They found that the petitioner had been taken to an undisclosed destination (para 5).
9. The petition sought the release of Joginder Kumar (para 5).
10. On 14 January 1994 the SSP told the Court that the petitioner had been released. He said the petitioner was not in detention at all. The police had taken his help to detect cases of abduction, and he had cooperated (para 7).

Issues Raised

The judgment does not number its issues. The Court's questions, in its own words, were:

1. Where was the need to detain the petitioner for five days (para 7)?
2. If the petitioner was not in detention, why was this Court not informed (para 7)?
3. If there was detention for five days, for what reason was he detained (para 7)?
4. How is a balance to be struck between the expanding horizon of human rights and the rising crime rate, when complaints of indiscriminate arrests are being received (para 8)?
5. Does the existence of a power to arrest justify its exercise (paras 20-21)?
6. What safeguards must follow an arrest to protect the rights under Articles 21 and 22(1) (paras 21-23)?

Arguments Contended

The reported judgment does not record formal arguments of counsel. It records only the positions stated below.

For the petitioner

• The brother feared that the petitioner would be implicated in a criminal case and shot dead in a fake encounter (para 2).
• The petitioner had not been produced before the Magistrate concerned, and the family could not trace him (paras 3-5).
• The petition was preferred for his release (para 5).

For the respondents

• The SSP said the petitioner was not in detention at all (para 7).
• He said the police took the petitioner's help to detect cases relating to abduction, and the petitioner cooperated (para 7).
• He said there was therefore no question of detaining him (para 7).

Court's Reasoning

The judgment is a single order by the Bench. It does not name a judge as its author in the text.

The Bench (Venkatachalliah, C.J., Mohan and Anand, JJ.)

1. Noted: The Court recorded that the petitioner was released, so habeas corpus relief could not be granted as on that day. (para 7)
2. Held: The Court would still not end the writ petition on that ground. (para 7)
3. Noted: The questions about the five days of detention and the failure to inform the Court remain unanswered, and the Court said these matters required enquiry. (para 7)
4. Held: The District Judge, Ghaziabad, must enquire in detail and report within four weeks. (para 7)
5. Noted: The horizon of human rights is expanding while the crime rate also rises. The Court had been receiving complaints of human rights violations from indiscriminate arrests. It asked how to balance the two. (para 8)
6. Noted: The law of arrest balances individual rights, liberties and privileges against individual duties and obligations. It also balances the single individual against individuals collectively. (para 9)
7. Noted: The Court cited Justice Cardozo in People v. Defore. He asked whether protection for the individual would be gained at a disproportionate loss of protection for society. He said the social need that crime shall be repressed stands against the social need that law shall not be flouted by the insolence of office. (para 9)
8. Noted: Judge Learned Hand, in Re Fried, said protection of the individual from police oppression is a major interest in a free society. He said effective prosecution of crime is an interest too, and criminal proceedings must be a compromise. (para 10)
9. Noted: The Court added that "The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law." (para 10)
10. Noted: Nandini Satpathy v. P.L. Dani quoted Lewis Mayers. He called the balance between law enforcement and protection of the citizen a perennial problem of statecraft, and said the pendulum had swung to the right. (para 11)
11. Noted: Nandini Satpathy also said there is a rivalry between societal interest in crime detection and the constitutional rights of accused persons. It said emphasis may shift with circumstances, and it noted a retreat in American law from stress on the accused after Miranda. (para 11)
12. Noted: Nandini Satpathy added that the constitutional perspective must be relative and not absolutist, given torture technology, crime escalation and other social variables. (para 11)
13. Noted: The National Police Commission's Third Report called the power of arrest one of the chief sources of police corruption. It said nearly 60% of arrests were unnecessary or unjustified, and that this accounted for 43.2% of jail expenditure. (para 12)
14. Noted: The Commission said a major part of arrests concerned very minor prosecutions. Arrest with or without a warrant is governed by the Code of Criminal Procedure. (para 12)
15. Noted: When a public servant is arrested, the superior officers should be told, if possible before the arrest and in any case immediately after. For members of the Armed Forces, the officer commanding the unit should be told. (para 13)
16. Noted: Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, the Speaker must be told without delay when a member is arrested or detained. The Government concerned must be told at the same time. The intimation goes by telegram and post and must not wait for a holiday. (para 14)
17. Noted: Section 58 of the Code of Criminal Procedure requires officers in charge of police stations to report to the District Magistrate all persons arrested without warrant. This applies whether the persons are admitted to bail or not. (para 15)
18. Noted: Section 19(a) of the Children Act requires the parent or guardian of the child to be told of the arrest and directed to be present at the Children's Court. (para 16)
19. Noted: In England the Police and Criminal Evidence Act, 1984, based on the Philips Royal Commission report, streamlined police powers of arrest, detention and interrogation. (para 17)
20. Noted: The Court quoted Police Powers and Accountability by John L. Lambert. Public confidence needs police powers to meet three standards: fairness, openness and workability. (para 18)
21. Noted: The Royal Commission proposed restricting arrest by the necessity principle (arrest only where genuinely necessary). Police may use the power only where it is genuinely necessary to prevent offences or investigate crime. (para 19)
22. Noted: The Royal Commission proposed that detention after arrest should continue only on one or more of five criteria. They are unwillingness to identify oneself, the need to prevent repetition of the offence, and the need to protect the person or others. The other two are the need to preserve evidence and the likelihood of failing to appear in court. (para 19)
23. Noted: The Royal Commission also proposed an appearance notice, as used in Ontario. It obtains attendance at the police station without arrest, for example for fingerprinting, an identification parade or an interview. (para 19)
24. Noted: The Third Report of the National Police Commission said arrest during investigation of a cognizable case may be justified in four situations. These are a grave offence such as murder, dacoity, robbery or rape; a likelihood of absconding; violent behaviour with a risk of further offences; and a habitual offender. (para 20)
25. Noted: The Commission said it would be desirable to insist, through departmental instructions (orders issued without a statute), that an officer making an arrest records the reasons in the case diary (the police record of an investigation). (para 20)
26. Held: These guidelines are only the incidents of personal liberty guaranteed under the Constitution. (para 20)
27. Held: "No arrest can be made because it is lawful for the police officer to do so." (para 20)
28. Held: The existence of the power to arrest is one thing, and the justification for exercising it is quite another. The officer must be able to justify the arrest apart from his power to do so. (para 20)
29. Noted: Arrest and detention in a police lock-up can cause incalculable harm to a person's reputation and self-esteem. (para 20)
30. Held: No arrest should be made in a routine manner on a mere allegation. It would be prudent for the officer, in the citizen's interest and his own, to arrest only after reasonable satisfaction reached after some investigation. (para 20)
31. Held: That satisfaction must cover the genuineness and bona fides of the complaint, a reasonable belief about the person's complicity, and the need to effect arrest. (para 20)
32. Held: Denying a person of his liberty is a serious matter. A person is not liable to arrest merely on suspicion of complicity in an offence. (para 20)
33. Held: Except in heinous offences, arrest must be avoided if the officer can issue a notice to attend the Station House and not leave without permission. (para 20)
34. Noted: Section 56(1) of the Police and Criminal Evidence Act, 1984 covers an arrested person held in custody. On request, he may have one friend, relative or other interested person told of the arrest and place of detention. This must be done as soon as practicable. (para 21)
35. Held: These rights are inherent in Articles 21 and 22(1) and must be recognised and scrupulously protected. (para 21)
36. Held: To enforce them, the Court issued three requirements. An arrested person held in custody may, on request, have a friend, relative or other person told of the arrest and place of detention. (para 21)
37. Held: The police officer must tell the arrested person of this right when he is brought to the police station. An entry must be made in the diary of who was informed of the arrest. (para 21)
38. Held: The Magistrate before whom the arrested person is produced must satisfy himself that these requirements have been complied with. (para 21)
39. Held: The requirements apply in all cases of arrest until legal provisions are made. They are in addition to the rights in the various police manuals. (para 22)
40. Held: The requirements are not exhaustive. The Directors General of Police of all States must issue instructions requiring their observance. Departmental instructions must also require police to record in the case diary the reasons for the arrest. (para 23)

Authorities

• People v. Defore, 242 NY 13 (1926): quoted from Justice Cardozo on balancing protection of the individual against protection of society (para 9).
• People v. Adams, 176 NY 351 (1903): the rule in that case, which Cardozo said strikes a balance between opposing interests (para 9).
• Re Fried, 161 F 2d 453 (2d Cir 1947): quoted from Judge Learned Hand on the compromise in criminal proceedings (para 10).
• Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424; AIR 1978 SC 1025: quoted for Lewis Mayers and for the rivalry between crime detection and constitutional rights (para 11).
• Miranda v. Arizona, 384 US 436 (1966): named in Nandini Satpathy's quoted passage as the point after which American law retreated from stress on the accused (para 11).
• Couch v. United States, 409 US 322 (1973): named in the same quoted passage for the American trend on constitutional principles (para 11).
• Third Report of the National Police Commission: used for arrest figures and for the four circumstances justifying arrest (paras 12, 20).
• Report of the Royal Commission on Criminal Procedure (Sir Cyril Philips), Cmnd 8092 (1981): used for the necessity principle, the detention criteria and the appearance notice (paras 17-19).
• Police and Criminal Evidence Act, 1984 (England), including Section 56(1): used as the model for the right to have someone informed (paras 17, 21).
• Police Powers and Accountability by John L. Lambert, p. 93: quoted for fairness, openness and workability (para 18).
• Civil Actions Against the Police by Richard Clayton and Hugh Tomlinson, p. 313: cited for Section 56(1) of the 1984 Act (para 21).
• Also cited in footnotes: none beyond the cases above. The footnotes only give their citations.

Provisions mentioned

• Article 32 of the Constitution: the right to move the Supreme Court for enforcement of fundamental rights. The petition was brought under it (para 1).
• Article 21: protection of life and personal liberty. The right to have someone informed flows from it (para 21).
• Article 22(1): the right to have someone informed flows from it (para 21).
• Section 58, Code of Criminal Procedure: police station officers must report persons arrested without warrant to the District Magistrate (para 15).
• Section 19(a), Children Act: the parent or guardian of an arrested child must be told and directed to attend the Children's Court (para 16).
• Rule 229, Procedure and Conduct of Business in Lok Sabha: the Speaker must be told without delay of the arrest or detention of a member (para 14).

Judgement

1. The District Judge, Ghaziabad, must make a detailed enquiry into the detention and submit his report within four weeks of receiving the order (para 7).
2. An arrested person held in custody may ask to have one friend, relative or other person told of the arrest and place of detention. This is to be done as far as practicable (para 21).
3. The police officer must tell the arrested person of this right when he is brought to the police station (para 21).
4. An entry must be made in the diary of who was informed of the arrest (para 21).
5. The Magistrate before whom the arrested person is produced must satisfy himself that these requirements are complied with (para 21).
6. These requirements apply in all arrests until legal provisions are made, and are in addition to rights under police manuals (para 22).
7. The Directors General of Police of all States must issue instructions requiring observance of these requirements (para 23).
8. Departmental instructions must also require an arresting officer to record the reasons for the arrest in the case diary (para 23).
9. The judgment makes no order on costs.

Legal Principle / Ratio

The power to arrest is separate from the justification for using it. An officer must be able to justify the arrest after reasonable satisfaction reached through some investigation. An arrested person may, on request, have someone told of the arrest, and the entry is recorded in the diary.

Key holding: "No arrest can be made because it is lawful for the police officer to do so." (para 20)

Background, not directions: the Court's survey of English and Indian reports, and its remarks on public servants, members of the legislature and juveniles (paras 13-18), are background and not directions.

Subsequent Treatment

D.K. Basu v. State of West Bengal — decided 18 December 1996 (reported as 1997) by Kuldip Singh and Dr. A.S. Anand, JJ. (judgment by Anand, J.). The saved text has no paragraph numbers, so page references are given.

• It said Joginder Kumar considered the misuse of the police power of arrest. It quoted the passage that the power to arrest and its justification are different things (SCR p. 300).
• It described the facts of Joginder Kumar: the lawyer, the habeas corpus petition, the police version and the District Judge's enquiry (SCR pp. 300-301).
• It said this Court then laid down certain procedural requirements for arrests. It added that rights under Articles 21 and 22(1) must be jealously and scrupulously protected (SCR p. 301).
• Its headnote lists Joginder Kumar among the cases relied on.

K.S. Puttaswamy v. Union of India — W.P. (Civil) No. 494 of 2012, nine-Judge Bench, decided 24 August 2017.

• In the opinion of D.Y. Chandrachud, J., a passage from Manoj Narula v. Union of India is quoted. It says Joginder Kumar stated inherent rights under Articles 21 and 22 (para 83).
• The Court there only repeats a reference made in another case.
• A separate opinion in the same judgment lists the right against illegal detention among Article 21 rights, citing Joginder Kumar at paras 20 and 21.

Other later cases (not summarized): none could be fetched.

Critical Analysis

Analysis based on the judgment text.

• The judgment issues the three requirements until legal provisions are made. It does not say what remedy follows if police ignore them.
• The detailed guidelines on when arrest is justified come from the National Police Commission. The Court treats them as incidents of personal liberty, but it does not turn them into numbered directions.
• The Court did not decide whether the petitioner was in fact illegally detained. It ordered an enquiry by the District Judge, and the judgment records no outcome of that enquiry.
• The Court said the requirements are not exhaustive. This leaves open what further safeguards might be needed.

Significance

• The judgment links the law of arrest to Articles 21 and 22(1) and says arrest is not automatic.
• It created a notice-first approach for cases other than heinous offences (para 20).
• It fixed a first set of requirements to make arrests accountable: a right to inform someone, a diary entry and a check by the Magistrate (para 21).
• D.K. Basu (1996) quoted and relied on it.

Exam-Important Points

• Rule: the power to arrest is one thing and the justification for using it is another. Trap: an arrest is not valid merely because it is lawful (para 20).
• Rule: the right to have someone informed flows from Articles 21 and 22(1). Trap: the right applies on request (para 21).
• Rule: the officer must tell the arrested person of this right and make a diary entry. Trap: the Magistrate must check compliance (para 21).
• Rule: arrest may be avoided by a notice to attend except in heinous offences. Trap: this is the Court's guidance, not a statutory rule (para 20).
• Rule: the requirements apply until legal provisions are made, and are not exhaustive (paras 22-23).
• Rule: the Court did not grant habeas corpus because the petitioner was already released. It still ordered an enquiry (para 7).
• Companion case: D.K. Basu v. State of West Bengal (1996).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.