THE CODE OF CRIMINAL PROCEDURE, 1973

Joginder Kumar V. State of Uttar Pradesh

Shri D. K. Basu, Ashok K Johri V. State of West Bengal, State of U.P.

Arnesh Kumar V. State of Bihar

Delhi Judicial Service Association Tis Hazari Court, Delhi V. State of Gujrat

Raghvendra Kumar Chaudhary

Guest Faculty
Faculty of Law
University of Lucknow
Lucknow

Email: raghvendra.clc@gmail.com
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 Joginder Kumar V. State of Uttar Pradesh
(Date of Judgment April 25, 1991)

Facts of Case:

Joginder Kumar who was 28yrs was an advocate. SSP Ghaziabad called him in his
office for some inquiries. He along with his brothers reached to the office at 10 a.m.
on January 7, 1994. When 12.55 P.M. inquiries were made, it was replied that he will
be set free in evening. It was further informed that Joginder has been sent to
Mussoorie. On 9-1-1994, in the evening when the brother of petitioner along with
relatives went to P.S. Mussoorie to enquire about the well-being of his brother, it was
found that the petitioner had been taken to some undisclosed destination. Under these
circumstances, writ petition for habeas corpus was filed. The said Senior
Superintendent of Police along with petitioner appeared before this Court on 14-1-
1994.

Judgment – It was laid down that his friend or relative shall be informed and who has
been informed it shall be entered into prescribed book.

In this case Supreme Court observed,

“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 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 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.”

HELD:

The rights are fundamental rights which are inherent in Articles 21 and 22(1) of the
Constitution. They are required to be recognized and meticulously safeguarded. For
effective enforcement of those fundamental rights, the Hon’ble Court issued the
following guidelines:

An arrested person being held in custody is entitled to inform 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 that he has been arrested and where he is being detained.

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 1. The police officer shall inform the arrested person when he is brought to the
police station of this right.
2. An entry shall be required to be made in the diary as to who was informed of
the arrest. These protections from Articles 21 and 22(1) must be enforced
strictly.
3. It was further directed that it will be the duty of the Magistrate to satisfy him
with the requirements before whom the arrested person is produced.

Shri D. K. Basu, Ashok K Johri V. State of West Bengal, State of U.P.

(Date of Judgment December 12, 1996)

Facts (1) Shri D K Basu Case:

Shri D.K. Basu, the Executive Chairman, Legal Aid Services, West Bengal, a non-
political organisation registered under the Societies Registration Act, on 26th August,
1986 addressed a letter to the Chief Justice of India (Hon’ble P.N.Bhagwati) drawing
his attention to certain news items published in the Telegraph dated 20, 21 and 22 of
July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding
deaths in police lock- ups and custody. It was requested that the letter must be treated
as a writ petition under “public interest litigation” category. Considering the
importance of the issue raised in the letter being concerned by frequent complaints
regarding custodial violence and deaths in police lock up, the letter was treated as a
writ petition and notice was issued on 9.2.1987 to the respondents.

Facts (2) Ashok K. Johri Case:

Shri D.K.Basu case was pending. A letter addressed by Shri Ashok Kumar Johri on
29.7.87 to the Hon’ble Chief Justice of (Justice R.S.Pathak) India drawing the attention
of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody
was received. That letter was also treated as a writ petition and was directed to be listed
along with the writ petition filed by Shri D.K. Basu.

Guidelines- After considering the gravity of custodial death eleven guidelines were
laid down which are following:

1. The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags

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 with their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by at least
one witness, who may either be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting witness of the memo
of arrest is himself such a 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 the
district or town through the Legal Aid Organisation in the district and the police
station of the area concerned 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 arrest or is
detained.
6. An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the next friend of the person
who has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be
recorded at that time. The Inspection Memo must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health Services of the State or Union
Territory concerned. Director, Health Services should prepare such a panel for
all tehsils and districts as well.

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 9. Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.
11. A police control room should be provided at all district and State headquarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.

FAILURE TO COMPLY WITH THE REQUIREMENTS

Failure to comply with the requirements hereinabove mentioned shall apart from
rendering the concerned official liable for departmental action, also render him liable
to be punished for contempt of court and the proceedings for contempt of court may be
instituted in any High Court of the country, having territorial jurisdiction over the
matter.

ADDITION TO THE CONSTITUTIONAL AND STATUTORY SAFEGUARDS

The requirements, referred to above flow from Articles 21 and 22 (1) of the
Constitution and need to be strictly followed. These requirements are in addition to the
constitutional and statutory safeguards and do not detract from various other directions
given by the courts from time to time in connection with the safeguarding of the rights
and dignity of the arrestee.

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 Arnesh Kumar V. State of Bihar
(Date of Judgment July 02, 2014)

FACTS OF CASE:

Marriage between Arnesh Kumar and Sweta was solemnized in 2007. Sweta alleged
that her husband and his family members were demanding Maruti car, eight lakhs rs.
an air conditioner, television set etc. In anticipation of arrest for offence committed
under section 498A (Maximum punishment 3 Yrs) and section 4 of the Dowry
Prohibition Act, 1961 (Maximum punishment 2 Yrs) Arnesh Kumar applied for
anticipatory bail which was rejected by Court of Session and later on it was also
rejected by High Court. Special Leave Petition (SLP) was filed before the Supreme
Court.

DECISION- In this case mainly interpretation of section 41(1) (b) was involved. As
we know that by 2009 amendment section 41 was substituted drastically. Supreme
Court issued guidelines and said that section 41(1)(b) must be strictly followed.
Section 41A deals those cases when arrest was not done under section 41. It was
directed that if section 41 is violated arresting authority will be responsible. If
Magistrate does not strictly comply section 167, he will also be responsible.

GUIDELINES:

Supreme Court observed, “Our endeavour in this judgment is to ensure that police
officers do not arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above, we give
the following direction:

1. Arrest under Section 498-A All the State Governments to instruct its police
officers not to automatically arrest when a case under Section 498-A of the IPC
is registered but to satisfy themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41, Cr.PC;
2. Check list - All police officers be provided with a check list containing
specified sub-clauses under Section 41(1) (b) (ii);

3. Forwarding of check list to Magistrate- The police officer shall forward the

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 check list duly filed and furnish the reasons and materials which necessitated
the arrest, while forwarding/producing the accused before the Magistrate for
further detention;

4. Section 167 of Cr.P.C - The Magistrate while authorizing detention of the

accused shall peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction,

5. Notice within two weeks under Section 41A- - Notice of appearance in terms
of Section 41A of Cr.P.C. be served on the accused within two weeks from the
date of institution of the case, which may be extended by the Superintendent of
Police of the District for the reasons to be recorded in writing;

6. Consequences of failure to comply direction- Failure to comply with the

directions aforesaid shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to be punished for
contempt of court to be instituted before High Court having territorial
jurisdiction.

7. Punishment for Judicial Magistrate- Authorizing detention without recording

reasons as aforesaid by the judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.

8. Direction for all cases punishable up to seven years- We hasten to add that
the directions aforesaid shall not only apply to the cases under Section 498-A of
the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also
such cases where offence is punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years; whether with or
without fine.

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Delhi Judicial Service Association Tis Hazari Court, Delhi V. State of Gujarat

(Date of Judgment September 11, 1996)

FACTS OF CASE

Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He
soon found that the local Police was not cooperating with the courts in effecting
service of summons, warrants and notices on accused persons, as a result of which the
trials of cases were delayed. He made complaint against the local police to the District
Superintendent of Police and forwarded a copy of the same to the Director General of
Police but nothing concrete happened. On account of these complaints, Mr. S.R.
Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and
he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two
complaints with the Police against the Police Inspector and other Police Officials,
Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the
police to register a criminal case against 14 persons who had caused obstruction in
judicial proceedings but subsequently since unqualified apology was tendered, the
CJM directed the Police Inspector to drop the cases. The Police Inspector reacted
strongly to the CJM's direction and he made complaint against the CJM to the
Registrar of the High Court through the District Superintendent of Police. On account
of the aforesaid facts there was hostility between the Police of Nadiad and the CJM.

On 25th September 1989, the Police Inspector met the CJM in his chambers to
discuss a case where the Police had failed to submit the charge-sheet within 90 days.
During discussion the Police Inspector invited the CJM to visit the police station to see
the papers and assured him that he would mollify the sentiments of the police officials.
At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM's
residence and he went to the Police Station. According to the CJM when he arrived in
the Police Station he was forced to consume liquor and on his refusal he was assaulted,
handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and
Constable and that he was sent to Hospital for Medical Examination under handcuffs.
A photographer was arranged to take his photograph which was published in the
newspapers. The Police Inspector disputed these allegations and according to him the
CJM entered his chamber at the Police Station in a drunken state, shouting and abusing
him and since he was violent, he was arrested, handcuffed and sent to Hospital for
Medical Examination. He himself wanted to be photographed and that is why the
photographs were taken by the press photographer.

GUIDELINES

A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for
an offence like any other citizen but in view of the paramount necessity of preserving
the independence of judiciary and at the same time ensuring that infractions of law are
properly investigated, Supreme Court issued the following guidelines:

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 1. Before arrest intimation to the District Judge or the High Court- If a
judicial officer is to be arrested for some offence, it should be done under
intimation to the District Judge or the High Court as the case may be.
2. In case of necessity only formal arrest- If facts and circumstances necessitate
the immediate arrest of a judicial officer of the subordinate judiciary, a
technical or formal arrest may be effected.
3. After arrest intimation to the District Judge and High Court- The facts of
such arrest should be immediately communicated to the District and Sessions
Judge of the concerned District and the Chief Justice of the High Court.
4. Not taken to Police Station without prior order of District & Sessions
Judge-The Judicial Officer so arrested shall not be taken to a police station,
without the prior order or directions of the District & Sessions Judge of the
concerned District, if available.
5. Immediate facilities- Immediate facilities shall be provided to the Judicial
Officer to communication with his family members, legal advisers and Judicial
Officers, including the District & Sessions Judge.
6. No statement, no punchnama, no medical test except in the presence of the
Legal Adviser-No statement of a Judicial Officer who is under arrest be
recorded nor any panchnama be drawn up nor any medical tests be conducted
except in the presence of the Legal Adviser of the Judicial Officer concerned or
another Judicial Office of equal or higher rank, is available.
7. No handcuffing- There should be no handcuffing of a Judicial Officer No
handcuffing- There should be no handcuffing of a Judicial Officer need to
effect physical arrest in order to avert danger to life and limb, the person
resisting arrest may be over-powered and handcuffed. In such case, immediate
report shall be made to the District & Sessions Judge concerned and also to the
Chief Justice of the High Court. But the burden would be on the Police to
establish necessity for effecting physical arrest and handcuffing the Judicial
Officer and if it be established that the physical arrest and handcuffing of the
Judicial Officer was unjustified, the Police Officers causing or responsible for
such arrest and handcuffing would be guilty of misconduct and would also be
personally liable for compensation and/or damages as may be summarily
determined by the High Court.

The above guidelines are not exhaustive but these are minimum safeguards which must
be observed in case of arrest of a judicial officer.

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