This symbolizes everything that’s wrong with the Indian criminal justice system.
The celebrated writ of habeas corpus has been described as `a great constitutional privilege of the citizen’ or `the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen, which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.
Habeas Corpus (Latin:”We command that you have the body”) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has been an important instrument for the safeguarding of individual freedom against arbitrary state action. In order to truly understand this judgment and the meaning of Habeas Corpus, we need a short lesson in history.
The Magna Carta was originally issued in 1215, and was written because of disagreements among Pope Innocent III, King John and the English barons about the rights of the King. Magna Carta required the king to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the king’s subjects, whether free or fettered – most notably the right of Habeas Corpus, meaning that they had rights against unlawful imprisonment. The link between the Magna Carta and this landmark judgment of the Supreme Court are the magic words: Habeas Corpus. Albert Venn Dicey wrote that the Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.
This is what former Chief Justice Of India, M.N. Venkatachalliah says (JOGINDER KUMAR Vs. STATE OF U.P.25/04/1994) in this landmark judgment that defined the powers of the police to arrest a person. This judgment is especially applicable in the case of a cognizable offense such as 498A:
“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 must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person 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 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 should 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. Denying a person of his liberty is a serious matter.
There are significant other requirements that need to be fulfilled for an arrest. These are:
1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
2. The accused is likely to abscond and evade the processes of law.
3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.
Justice JD Kapoor, in this judgment (Delhi High Court CRLMM 3875/2003 28.01.2004 Court on its own motion Versus Central Bureau of Investigation), says:
“For instance it is the experience of this court that in offences under Sections 498A/406 IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of he husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided.”
In yet another judgment dated 22.8.2004 (Criminal Misc.Writ Petition No.4861 of 2000, Ajeet Singh alias Muraha Vs. State of U.P. and others), Justice Markandeya Katju, while serving as a judge on the Allahahabad High Court, had the following to say:
“157. Procedure for investigation –
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”
The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).
In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”
Keeping the following judgments in mind, I am really interested in seeing how a grandma or a granddad, kids, aging parents and young siblings can fall into any of the categories described by Justice M.N. Venkatachalliah. The police cannot arrest a citizen without an investigation and without justification. The police will say that 498A is a cognizable offence. By cognizable, it means they have to register an FIR and INVESTIGATE not effect an immediate arrest. Think about it. If a king has been stripped of his power to arrest without cause, way back in 1215, how can the police still claim to have that power, especially since Habeas Corpus is incorporated in The Constitution Of India under Article 32?
To summarize, the police have the discretionary power to arrest you, but they need to justify the arrest and the Supreme Court has established that some investigation must be done before an arrest is made and only if necessary.
Given below are the orders of the Delhi Commissioner of Police which complies with the order of the Supreme Court under this judgment:
Here is the pdf of Joginder Kumar Vs State Of UP:
Here is the link to the judgment of the Allahabad HC, reiterating Joginder Kumar Vs State Of UP: