Holding

Arrest and detention are permissible only when justified by reasonable belief and necessity, and must be accompanied by statutory safeguards such as informing the arrested person, notifying a relative, diary entries, and magistrate verification.

Summary

The petitioner, Joginder Kumar, a 28‑year‑old advocate, was taken into police custody in Ghaziabad on the pretext of assisting with investigations and was not produced before a magistrate for five days. His brother’s inquiries revealed that the petitioner was being held in an undisclosed location, prompting a writ petition under Article 32 for his release. The Supreme Court examined whether the detention violated the constitutional guarantees of personal liberty under Articles 21 and 22(1) and found that the police had not complied with the procedural safeguards required for a lawful arrest. The Court laid down comprehensive guidelines requiring police to inform the arrested person of his right to have a relative or friend notified, to make a diary entry of such notification, and for the magistrate to verify compliance before production. It emphasized that arrest must be justified by reasonable belief and necessity, not merely by the officer’s power, especially in non‑heinous cases. Consequently, the petition was disposed of without granting relief, and the Court directed a district judge to investigate the circumstances of the detention. The judgment has become a landmark for defining the law of arrest in India.

Issues considered

Whether the petitioner’s detention without production before a magistrate violated Articles 21 and 22(1) of the Constitution.
What procedural safeguards must be observed by police before and after making an arrest.
Whether the police officer’s power of arrest can be exercised without reasonable justification.
Whether the writ petition under Article 32 is maintainable in the facts of the case.

Legislation cited

Criminal Procedure Code, 1971s. 41, s. 57, s. 58
Police and Criminal Evidence Act, 1984 (UK)

Subjects

ArrestFundamental RightsArticle 21Article 22(1)Police PowerIllegal DetentionHabeas CorpusCriminal Procedure CodeMagistrateProcedural Safeguards

Judgment

JOGINDER KUMAR A
v.
STATE OF U.P. AND OTHERS

APRIL 25, 1994

[M.N. VENKATACHALIAH, 0., S. MOHAN AND
B
i
-f DR. A.S. ANAND, JJ.]

Criminal Law : A1Test by police-Violation of human rights because of
indiscriminate arresi--Protection of persons from the oppression and abuse
by police-Enforcement of fundamental right to life and liberty-Requirements C
·to be followed in all cases of "Qrrests-Laid down.

Cr. PC 1971-Guide lines laid down for arrest with or without wa1Tant
depending upon the circumstances of a particular case. Constitution of
,. India-Art. 21-f'rotection of life and personal liberty-f'rotection against D
arrest and detention in certain cases-No detention without information of
the grounds for such 01Test-Righl to consult and to be defended by a legal
practitioner-Not to be denied.

·Need for balance between law enforcement on one hand and the
protection of citizen from the oppression and injustice at the hand of law E ·
enforcement machinery on the othei-Effective enforcement of the fundamen'
ta/ rights-Requirements to be followed in all cases of 01Test laid down in
addition to the rights of the OITested persons found in various police mar'.ia/s.

'\ The appellant, a young man, detained by the police authorities on
the pretext of making some inquiries in a ease, was assured to be
F
.)
released after making inquiries. Being apprehensive of the intention of
the authorities, appellant's _brother made several efforts to know the
whereabouts of the appellant bot appellant could not be located. How-
ever, it was learnt that appellant was in illegal police custody. So the
appellant's brother made enquiries about the well being of the appellant G
but it was found that the appellant had been taken to some undisclosed
destination. Hence this writ petition praying for the release of the
appellant.

Disposing the petition, this Court H
661
662 SUPREME COURT REPORTS [1994] 3 S.C.R.
.,... -'\
A HELD : 1. The law of arrest is one of balancing individual rights,
liberties and privileges, on the one hand and individual duties, ol>ligations
and responsibilities on the others; of weighing and balancing the rights,
liberties and privileges of the single individual and those of individuals
collectively, of simply deciding what is wanted and where to put the weigjlt
and the emphasis; of deciding which comes first, the criminal or society,
B the law violator or the law abider. No arrest can be made merely beca•1se
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 anothu.
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 caU1se
C incalculable harm to the reputation and self esteem of a person. No arms!
can be made in a routine manner on a mere a!legation of commission of
an offence made against a person. It would be prudent for 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
D reasonable satisfaction reached after some investigation as to the genuine·
ness and bonafide of a complaint and a reasonable belief both as to lhe
person's complicity and even so, as to the need to effect arrest. Denyin1~ a
person of his liberty is a serious matter. The recommendations of lhe
police commission merely reflect the con•titutional concomitants of the
fundamental rights to personal liberty and freedom. [665·D·E, 670-E·G]
E
2. A person is not liable to arrest merely on the suspicion of com·
plicity in an offence. There must be some reasonable justification in 1the
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
F officer issues notice to person to attend the Station House and not to leave
station without permission. [670-H, 671-A]

3.1 The above rights are inherent in Art. 21 and Art.22(1) of 1tbe
Constitution and require to be recognized and scrupulously protected.'f<or
effective enforcement of these fundamental rights, the following directives
G are issued. [671-D]

-
3.2. 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
H he has been arrested and where is being detained. [671-E]
JOG!NbER v. STATEOFU.P. 663

3.3. The police officer shall inform the arrested person when he is A
brought to tt.e police station of this right. [671·F)

3.4. 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 Dow
from Art. 21 and Art. 22(1) and enforced strictly. (671-F)
B
I 3.5. It shall be the duty of the Magistrate before who the arrested
+ person is produced, to satisfy himself that these requirements have been
complied with. These requirements shall be followed in all cases of arrest
till legal provisions are made in this behalf. These requirements shall be
in addition to the rights of the arrested persons found in the various police C
manuals. [671·G·H)

3.6. The above requirements are not exhaustive. The Directorate
General of Police of all the states in India shall issue necessary instruc-
tions requiring due observance of these requirements. In addition,
departmental instructions shall also be issued to the effect that a Police D
Officer making an arrest should also record in the case diary, the reasons
' for making the arrest. [672·A·BJ

Smt Nandini Satpathy v. P.L. Dani, AIR (1978) SC 1025, referred to.

People v. Lefore, 242 N.Y. 13, 24, 150 N.E. 585, 589 (1926) : Re Fried, E
161 F. 2d 453, referred to.

Third report of the National Police Commission, P. 32, referred to .

.,_ CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL.)
\ No. 9 of 1994. F
(Under Article 32 of the Constitution of India).

Yunus Malik and L.R. Singh for the Petitioner.

A. S. Pundir for the Respondents. G
The following Order of the Court was delivered :

... This is a petition under Article 32 of the Constitution of India. The
petitioner is a young man of 28 years of age who has completed his LL.B.
and bas enrolled himself as an advocate. The Senior Superintendent of H
664 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Police, Ghaziabad, respondent No. 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 brothers Sri Mangeram Choud-
hary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh & others
before the respondent No. 4. Respoudent No. 4 kept the petitioner in hi:s
custody. When the brother of the petitioner made enquiries about the
B petitioner, he 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 petitiouer being
apprehensive of the intentions of respondent No. 4, sent a telegram to the
C 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
D petitioner is detained in illegal custody of 5th respondent, SHO P.S.
Mussorie.
•
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 as
petitioner has not been produced before the concerned Magistrate. Instead
E
the 5th respondent directed the relative of the petitioner to approach the
4th respondent S.S.P. Ghaziabad for release of the petitioner.

On 9.1.1994, in the evening when the bwther of petitioner along with
relatives went . to P.S. Mussorie to enquire about the well-being of his
•
F brother, it was found that the petitioner had been taken to some un-
disclosed destination. Under these circumstances, the present petition has
been preferred for the release of Joginder Kumar, the petitioner herein.

This Court on ll.1.1994 ordered notice to State of U.P. as well as
S.S.P. Ghaziabad.
G
The said Senior Superintendent of Police along with petitioner ap-
"
..
peared before this Court on 14.1.1994. According to him, the petitioner has
been released. To question as to why the petitioner was detained for a
period of five days, he would submit that the petitioner was not in detention
H at all. His help was taken for detecting some cases relating to abduction
JOGINDER v. STATE OF U.P. 665
\,..
and the petitioner was helpful in co-operating with the police. Therefore, A
there is no question of detaining him. Though, as on today the relief in
habeas corpus petition cannot be granted yet this court cannot put an end
to the writ petition on this score. Where was the need to detain the
petitioner for five days; if really the petitioner was not in detention, why
was not this Court informed are some questions which remain unanswered.
If really, there was a detention for five days; for what reason was he
B

~ detained? These- matters require to be enquired into. Therefore, we direct
the learned District Judge, Ghaziabad to make a detailed enquiry and
submit his report within four weeks from the date of receipt of this order.

The horizon of human rights is expanding. At the same time, the c
crime rate is also increasing. Of late, this Court has been receiving com-
plaints about violation of human rights because of indiscriminate arrests.
How are we to strike a balance between the two?

.. A realistic approach should be made in this direction. The law of
arrest is one of balancing individual rights, liberties and priviieges, on the
D
' , one hand, and individual duties, obligation and responsibilities on the
other; of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding
what is wanted and where to put the weight and the emphasis; of deciding
which comes first .. the criminal or society, the law violator or the law E
abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly
met when he wrestled with a similar task of balancing individual rights
against society's rights and wisely held that the exclusion rule was bad law,
,. that society came first, and that the criminal should not go free because,
the constable blundered. Jn People v. Lefore, 242 N.Y. 13, 24, 150 N.E. 585,
) F
589 (1926), Justice Cardozo observed :

"The question is whether protection for the individual would
not be gained at a disproportionate loss of protection for society.
On the one side is the social need that crime shall be repressed.
On the other, the social need that law shall not be flouted by the G
insolence of offence. There are dangers ic any choice. The rule of
the Adams case People v.Adams 176 N.Y. 351, 68 N.E. 636 (1903)
strikes a balance between opposing interests. We must hold it to
be the law until those organs of government by which a change of
public policy is normally effected shall give notice to the courts H
j

666 SUPREME COURT REPORTS [1994] 3 S.C.R.

A that change has came to pass."

To the same effect is the statement by Judge Learned Hand, In Re
Fried, 161 f.2d 453, 465 2d Cir. (1947):

"The protection of the individual from oppression and abuse by
B the police and other enforcing officers is indeed a major interest
in a free society; but so is the effective prosecution of crime, an
interest which at times seems to be forgotten. Perfection is impos··
I
>
sible; like other human institutions criminal proceedings must be
a compromise."
c The quality of a nation's civilisation can be largely measured by the
methods it uses in the enforcement of criminal law.

This Court in Smt. Nandini Satpathy v. P.L. Dani, AIR (1978) SC
1025 at page 1032 quoting Lewis Mayers stated :
D The paradox has been put sharply by Lewis Mayers : •
•
"To strike the balance between the needs of law enforcement
on the one hand and the protection of the citizen from oppression
and injustice at the hands of the law-enforcement machinery on
E the other is a perennial problem of statecraft. The pendulum over
the years has swung to the right."

Again in paragraph 21 at page 1033 it was observed :

"We have earlier spoken of the conflicting claims requiring recon-
F ciliation. Speaking pragmatically, there exists a rivalry between "
societal interest in effecting crime detection and constitutioncal
rights which accused individuals possess. Emphasis may shift,
depending on circumstances, in balancing these interests as has
been happening in America. Since Miranda (1966) 334 U.S. 436
there has been retreat from stress on protection of the accused
G and gravitation towards society's interest in convicting law-brakers.
Currently, the trend in the American jurisdiction according to legal
journals, is that 'respect for (constitutional) principles is eroded
when they leap their proper bounds to interfere with the legitimate :;.
interests of society in enforcement of its laws ....... .' Couch v. United
H States, (1972) 409 U.S. 322, 336. Our constitutional perspective has,
JOGINDER v. STATE OF U.P. 667

therefore, to be relative and cannot afford to be absolutist, espe- A
cially when torture technology, crime escalation and other social
variables affect the application of principles in producing humane
justice."

The National Police Commission in its Third Report referring to the
quality of arrests by the Police in India mentioned power of arrest as one B
of the· chief sources of corruption in the police. The report suggested that,
by and large, nearly 60% of the arres\s were either unnecessary or unjus-
tified and that such unjustified police action accounted for 43.2% of the
expenditure of the jails. The said Commission in it~ Third Report at page
.31 observed thus·: c
"It is obvious that a major portion of the arrests were connected
with very minor prosecutions and cannot, therefore, be regarded
as quite necessary from the point of View of crime prevention.
Continued detention in jail of the persons so arrested has also
meant avoidable expenditure on their maintenance. In the above D
period it was estimated that 43.2 per cent of the expenditure in
the connected jails was over such prisoners only who in the ultimate
anaJYsis need not have been arrested at all."

As on today, arrest with or without warrant depending upon the E
circumstances of a particular case is governed by the Code of Criminal
Procedure.

Whenever a public servant is arrested that matter should be in-
timated to the superior officers, if possible, before the arrest and in any
case, immediately after the arrest. In cases of members of Armed Forces, F
Army, Navy or Air Force, intimation should be sent to the Officer com-
manding the unit to which the member belongs. It should be done imme-
diately after the arrest is effected.

Under Rule 229 of the Procedure and Conduct of Business in Lok
Sabha, when a Member is arrested on a Criminal charge or is detained G
under an executive order of the Magistrate, the executive authority must
inform without delay such fact to the Speaker. As soon as any arrest,
detention, con'viction or release is effected intimation •hould invariably be
sent to the Government concerned concurrently with the intimation sent
to the Speaker/Chairman of the Legislative Assembly/Council/Lok H
668 SUPREME COURT REPORTS [1994] 3 S.C.R.
y' -
A Sabha/Rajya Sabha. This should be sent through telegrams and also by post
and the intimation should not be on the ground of holiday.

With regard to the apprehension of juvenile offenders Section 58 of
ihe Code of Criminal Procedure lays down as under :

B "Officers in charge of police station shall report to the District
Magistrate or, if he so directs, to the Sub-Divisional Magistrate,
I
the cases of all persons arrested without warrant, within the limit
of their respective stations whether such persons have been ad-
mitted to b.ail or otherwise."
c Section 19(a) of the Children Act makes the following provision·:

"the parent or guardian of the child, if he can be found, of such
arrest and direct him to be present at the children's court before
which the child will appears;"
D In England, the police powers of Arrest, Detention and Interrogation
have been streamlined by the Police and Criminal Evidence Act, 1984
based on the report of Sir Cyril Philips Committee ("Report of a Royal
Commission on Criminal Procedure, Command-papers 8092 19811).

E It is worth quoting the following passage from Police Powers and
Accountablilty by John L. Lambert, page 93:

"More recently, the Royal Commission on Criminal procedure
recognised that "there is a critically important relationship between
the police and the public in the detection and investigation of
F crime" and suggested that public confidence in police powers
required that these conform to three principal standards : faimess,
openness and workability."

(Emphasis supplied)
G The Royal Commission suggested restrictions on the power of arrest
on the basis of the 'necessity of principle'. The two main objectives of this
principle are that police can exercise powers only in those cases in which
it was genuinely necessary to enable them to execute their duty to prevent
the Commission of offences, to investigate crime. The Royal Commission
H was of the view that such restrictions would diminish the use of arrest and
JOGINDER v. STATE OFU.P. 669

produce more uniform use of powers. The Royal Commission Report on A
Criminal Procedure - Sir Cyril Philips at page 45 said :

........ we recommend that detention upon arrest for an offence
11

should continue only on one or more of the following criteria:

(a) the person's unwillingness to identify himself so that a B
summons may be served upon him;

l (b) the need prevent the continuation or repetition of that
offence;

( c) the need to protect the arrested person himself or other c
persons or property;

(d) the need to secure or preserve evidence of or relating to
that offence or to obtain such evidence from the suspect by
questioning him ; and
D
(e) the likelihood of the person failing to appear at court to
'
answer any charge made ag~inst him."·

The Royal Commission in the abovesaid Report at page 46 also
suggested: E
"To help to reduce the use of arrest we would also propose the
introduction here of a scheme that is used in Ontario enabling a
police officer to issued what is called an appearance notice. That
procedure can be used to obtain attendance at the police station
without resorting to arrest provided a power to arrest exists, for F
~

I example to be fingerprinted or to participate in an identification
parade. It could also be extended to attendance for interview at a
time convenient both to the suspect and to the police officer
investigating.the case ....... n
G
In India, Third Report of the National Police Commission at page
32 also suggested:

"...... An arrest during the investigation of a cognizable case may
be considered justified in one or other of the following circumstan-
ces: H
)

670 SUPREME COURT REPORTS [1994] 3 S.C.It.

A (i) The case involves a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused an.d
bring his movements under restraint to infuse confidence among
the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes
B of law.

(iii) The accused is given to violent behaviour and is likely to
commit further offences unless his movements are brought under
restraint.
c (iv) the accused is a habitual offender and unless kept m
custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instruc-
tions that a police officer making an arrest should also record in
D the case diary the reasons for making the arrest, thereby clarifying
his conformity to the specified guidelines ......'

The above guidelines are merely the incidents of personal liberty
guaranteed under the Constitution of India. No arrest can be made because
it is lawful for the Police Officer to do so .. The existence of the power to
E arrest is one thing. The justification of 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
F 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 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. Den}ing a person of
G his liberty is a serious matter. The recommendations of the Police Com-
mission merely reflect the constitutional concomitants of the fundamental
right to personal liberty and freedom. 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 arrnst
H that such arrest is necessary and justified. Except in heinous offences, ~ *·
JOGINDER v. STATEOFU.P. 671

arrest must be avoided if a police Officer issues notice to person to attend A
to Station House and not to leave Station without permission would do.

Then, there is the right to have someone informed. That right of the
arrested person, upon request, to have someone informed and to consult
privately with a lawyer was recognised by Section 56(1) of the Police and
Criminal Evidence Act, 1984 ill England (Civil Actions Against the Police- B
Richard Clayton and Hugh Tomlinson; page 313). That Section provides;

- )
\. "where a person has been arrested and is being held in custody
in a police station or other premises, he shall be entitled, if he so·
requests, to have one friend or relative or other person who is C
known to him or who is likely to take an interest in his welfare
told, as soon as is practicable except to the extent that delay is
permitted by this section, that he has been arrested and is being
detained there."

These rights are inherent in Articles 21 and 22(1) of the Constitution D
and require to be recognised and scrupulously protected. For effective
enforcement of these fundamental rights, we issue the following require-
ments:

1. An arrested person being held in custody is entitled, if he so
requests to have one friend ·relative or other person who is kriown E
to him or likely to take an interest in his welfare told as far as is
practicable that he has been arrested 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.
F
~
I
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.

It shall be the duty of the Magistrate, before whom the arrested G
person is produced, to satisfy himself that these requirements have been
complied with.

The above requirements shall be followed in all cases of arrest till
legal provisions are made in this behalf. These requirements shall be in
addition to the rights of the arrested persons found in the various Police H
672 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Manuals.

These requirements are not exhaustive. The Directors General of '
Police of all the States in India shall issue necessary instructions requiring
due observance of these requirements. In additions, departmental instruc-
tion shall also be issued that a police officer making an arrest should also
B record in the case diary, the reasons for making the arrest.

R.A. Petition disposed of.

...l --:
•

•
'