By: M.S.Yatnatti: Editor and Video Journalist Bengaluru: TheHon'bleSupremeCourtofIndiainthematterof Joginder KumarVsStateof UP( Crl. WP No. 9 of 1994 )madethefollowingobservations:-
1.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 mustbeable to justify the arrest apart from his power to do so.
2.No arrestcanbemadein a routinemanneronamereallegation of commission of an offence made against a person......... no arrest should be madewithoutareasonablesatisfactionreachedaftersomeinvestigation as to the genuineness and bona fidesofa complaint andareasonablebelief both as to the person's complicity and even so as to the need to effect arrest.
3.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.
The following requirements also prescribed in the judgement:-
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 thathe hasbeenarrested and where 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 mustbe heldto flow from Articles 21 and 22 (1) and enforced strictly.
TheHon'bleSupremeCourtof IndiainthecaseofD.K.BasuVs.State of West Bengal issued thefollowing requirements tobe followedinall cases of arrest or detention:-
1.Thepolicepersonnelcarryingoutthearrestandhandlingthe interrogation ofthearresteeshouldbearaccurate,visibleand clearidentification and nametagswiththeirdesignations.Theparticularsofallsuch police personnel who handle interrogation of the arrestee must be recorded in a register and the case diary.
2.The police officer carryingoutthearrestofthe arrestee shall prepare a memoofarrest atthetimeof arrestandsuchmemoshallbeattestedby at least one witness,who may be either amember of thefamilyofthe arrestee or arespectable person of the localityfromwherethearrestismade.It shallalso be counter signed by the arrestee and shall contain the time and date of arrest.
3.A person whohasbeenarrestedor detainedandisbeingheldincustodyinapolicestation orinterrogationcentreorotherlock-up,shall beentitled to haveonefriendorrelative ortheperson known to himorhavinginterestinhiswelfarebeinginformed,assoonaspracticable, thathehasbeenarrestedandisbeing detainedattheparticularplace, unless the attesting witness of the memo of arrest ishimselfsucha friend or a relative of the arrestee.
4.The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside of the district or town through the Legal Aid Organization in the District and the police station of the area concerned telephonically/ telegraphically within a period of 8 to 12 hours after the arrest.
5.The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrestor is detained.
6.Anentrymustbemadeinthediaryattheplace of detention regarding the arrest ofthepersonwhichshallalso disclose thenameofthe next friendofthepersonwhohasbeen informedofthearrestand the names andparticularsofthepoliceofficialsinwhosecustodythearresteeis.
7.Thearresteeshould,wherehesorequests,bealsoexaminedatthetime of his arrest and major andminorinjuries,ifanypresenton his/her body,mustberecordedat thattime.The"Inspection Memo”mustbe signedbothbythearresteeandthepoliceaffectingthearrestandits copy provided to the arrestee.
8.Thearresteeshouldbesubjected to medicalexaminationbyatrained doctorafterevery48hoursduring hisdetentioniscustodybyadoctoron the panelofapproveddoctorsappointedbyDirector,HealthServicesoftheconcernedStateorUnionTerritory,Director,HealthServices should preparesuchapanel forallTehsilsandDistrictsaswell.
9.Copiesofallthedocumentsincludingthememoofarrest,referred to above,shouldbesenttotheIllaqaMagistrateforhisrecord.
10The arrestee may be permitted to meet his lawyer during interrogation, though not through out the interrogation.
11.A Police control roomshouldbeprovided at all district and state headquarters where informationregardingthe arrestandthe place of custody ofthearresteeshallbecommunicatedbytheofficercausingthe arrest,within12 hoursofeffectingthearrestandatthepolicecontrolroomitshouldbedisplayedonaconspicuousnoticeboard.
TheSupremeCourtofIndiaalsodirectedthatfailureto comply withthesaidrequirementsshallapartfrom renderingtheconcerned official liablefordepartmentalaction,alsorender himliabletobepunished forcontemptofCourtandtheproceedingsforcontempt of Court may beinstituted in anyHighCourt of the country,having territorial jurisdictionoverthe matter.Theseinstructionsaretobenotifiedateverypolicestation at a conspicuous place.
The Delhi High CourtinCrl.M(M) 3875/2003in 'CourtOnIts Own Motion Vs CBI' madethefollowingobservations/ directions regarding arrestsundersection498A/406IPC.TheCourtobservedthatSections 498A/406 IPV which "aremuchabusedprovisionsandexploitedby thepolice and the victims to the level of absurdity...................every relative of the husband, close or distant, old or minor is arrested by the police.....................unless the allegationsareveryseriousnatureandhighestmagnitudearrestshouldalways be avoided”.
In a recent judgment in criminalappealNos.696/2004, 748/2004, 787/2004 and 749/2004 pronounced on1.11.2007,theDelhiHighCourt observed that "............. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police.The police does not verify anycircumstantial evidencenor collect any other evidence about the claims made by the complainant.No evidence about giving of dowry or resources of the complainant's family claiming spending of huge amounts is collected by the police.This all is resulting into gross misuse of the provisions of law.............”.
The Hon'ble Mr. Justice Kailash Gambhir, High Court of Delhi, in Bail Application No.1627/2008titled"ChanderBhan&Anr.VsState”passed, inter-alia, thefollowingguidelines tobe strictlyfollowedbythepolice authorities:-
"(A)(i)No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP.
(ii)Arrest of main accused should be made only after thorough investigationhasbeenconductedandwithpriorapprovalof the ACP/DCP.
(iii)Arrestofthecollateralaccusedsuchasfather-in -law ,mother-in-law,brother-in -laworsister-in-lawetc.should onlybemadeafterprior
(B)Policeshouldalsodeputeawelltrainedandawellbehaved staffinall thecrimeagainstwomencellsespeciallythe lady officers,allwellequippedwiththe abilitiesofperseverance, Persuasion,patienceandforbearance.
(D)The endeavour of the policeshould be to scrutinize complaints verycarefullyandthenregisterFIR.
(E)TheFIRshouldberegisteredonlyagainstthosepersons againstwhomtherearestrongallegationsofcausing any kind ofphysicalormental crueltyaswellasbreachoftrust.
(F)All possibleefforts shouldbe made,beforerecommending registration ofany FIR,forreconciliationandincaseit is found thatthereisno possibilityofsettlement,then necessarystepsinthefirstinstancebetaken toensure return ofstridhananddowryarticlesetc.bytheaccused party to thecomplainant”.