Magna Carta, Habeas Corpus And Joginder Kumar Vs State Of UP

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:

Delhi Police: No 498A Arrests Without DCP’s Permission

Here is the pdf of Joginder Kumar Vs State Of UP:

Joginder Kumar Vs State Of UP-Apr/25/1994

Here is the link to the judgment of the Allahabad HC, reiterating Joginder Kumar Vs State Of UP:

Allahabad HC On Joginder Kumar Vs State Of UP


9 Responses to “Magna Carta, Habeas Corpus And Joginder Kumar Vs State Of UP”

  1. 1 binu June 17, 2009 at 2:53 pm

    its truly a landmark decision coming for the safety of the citizens


  2. 2 raj July 23, 2009 at 9:13 pm

    Well, this is the law aready but police misuse the provison given to them to protect the innocents. This provison is in west even today but is not misused. So the judge emphesize it again here. But unless the state sends clear directions to the law enforcement agency ie police the judgement is of no use in our corrupt ill mentality attitude. It will be thrown in toilet. Now the amendment of CRPC 41 gives the direction to use the power given to police. But the direction ie the clarified law is not a good law for LOWYERs.

    I never believed when WEST kept telling India as barbaric!!!


  3. 3 Adv.Rana Sarda August 23, 2009 at 5:05 am

    good laws are in exixtence but the problem arises when the law enforcement agencies themselves abuses the law because of the only one reason of safety they have got due to delayed justice and torcherous and long procedure of our juridical system which the civilian himself want to avoid thus do not want to take resort of the law and rights made out in his favour to avoid this abuse to himself and compromises in unlawful manners.


  4. 4 Sam August 23, 2009 at 6:47 am

    The recent opposition to crpc amendment, (where the police have to give notice to appear instead of trigger happy arrests currently made by them) by the lawyer community reveals the corruption that has become entrenched in our society.

    The reason given out by these hypocrites was that if the police do not have discretionary powers to arrest the accused, the law and order situation would become worse. This is simply mind boggling!

    Since when the lawyers have been entrusted with the task of maintaining law and order? Is it not the duty of the lawyers to ensure the rights conferred on their clients by the constitution are fully upheld? Do they not understand that the world is watching them? Do they not understand the only reason they are opposing these amendments is that the number of bail applications would drastically come down eating into their illegitimate sources of income?

    This daylight naked hypocrisy exhibited by the lawyer community in opposing the crpc amendments aimed at preventing illegal detentions, is a shameful chapter in the history of Indian Jurisprudence. The lawyer community rightfully earns the title of “hooligans in black” instead of the august reputation they deserve in the society. Civil society must oppose this organized thuggery on the part of the lawyer community and press for the speedy implementation of crpc amendments which are already passed by both houses of the parliament, assented by the hon’ble president and notified in the gazette.


  5. 5 Sharat November 25, 2009 at 1:33 pm

    When is this Tughlaki law 498 going to be repealed?


  6. 7 nityanand jha February 22, 2011 at 7:38 pm

    all the modern law which we are following is replica of british legal system and same law including criminal law is successful in the west/England but it is total non stater in india because law is meant for low abider but her concept is defferrent because in our political system servival is the fittest concept is still privilant erespective of quality and till the basic mind set regarding law to be followed in its letters and spirit is not adopted, no law will be a success in India


  7. 8 Dr,..Rohit Mishra March 8, 2012 at 7:49 am

    498A is not bad law. It is a safeguard a wife and her parents have. The law is misused to harass because police join hands. Many a times it is police who insist that parents of an accidentally dead bride file FIR to implicate husband and his relatives.All this goes on for money. Thereis also misuse of 324IPC, If woring wife files for divorce from a jobless and lazy husband , the husband files false 324 IPC cases against brother sister father of divorce seeing woring women.


  8. 9 Rayu Mahambare November 3, 2013 at 7:35 am

    In violation of guidelines in Joginder Kumar’s case for arresting a person, what is a legal recourse available for the victim ? After directions from the Hon’ble High Court fresh enquiry was held against the erring police officer when he was exonerated from the charges in 1st enquiry and subsequently held guilty in 2nd enquiry. For his proved guilt of unnecessary and high handed action of arresting a person, he was punished by the police authority by “stoppage of two increments” which is an eyewash and grossly inadequate when a victim is facing humiliation in the society. What can be done in this situation ? Kindly guide me.


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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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