Magna
Carta, Habeas Corpus And Joginder Kumar Vs State of Uttar Pradesh
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.
No comments:
Post a Comment