Arrest!! (OR Who is Joginder Kumar?)
"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."
These are the word of a chief justice of India. Let me capitalise (Capitalise) the words in case you have any doubt. These are the words of a Chief Justice of India. The Chief Justice of the Supreme Court of India. Worth adding is the fact that he was not speaking only for himself. He was at the head of a full bench of the Supreme Court, which included one other judge who was going to become the next CJI (just an observation, not that it matters at all here).
The full bench had been constituted and forced to hear a petition at super speed by a most ordinary of ordinary citizens of India. The petition had been filed directly in the Supreme Court without having to go through any of the lower courts or any High Court. It had been heard, notices issued, replies taken, and the judgement delivered within 98 days of a man named Joginder Kumar being arrested without authorisation and justification by an SSP of UP Police.
The reason for this alacrity? A Habeas Corpus petition. This is a petition which is designed to protect the most fundamental of your rights, the right without which –many feel– even the right to life is worthless. Your right to liberty.
This judgement is pretty much a final judgement. It can only be challenged in front of a Constitution Bench of the Supreme Court, and there is no policeman in this country who possesses the courage or the foolishness required to face a Constitution Bench in order to retain the unfettered right to arrest anybody and everybody.
Arrest can be defined as the imposition of restrictions on a an individual's freedom of movement. Some writers hold that there is no difference between arrest and imprisonment.
Assumi observes that even the king of England had lost the power to arrest any of his subjects (yes, subjects!) without justification as far back as the signing of the Magna Carta. How then can the police in India claim to have unfettered powers of arrest in the 21st century? (Assumi, N.K., Magna Carta, Habeas Corpus And Joginder Kumar Vs State Of UP, http:// www.lawyers club india.com/ share_files/ Magna-Carta-Habeas- Corpus-And- Joginder-Kumar- Vs-State-Of- UP-7721.asp, 16th June 2012, viewed in Delhi on 2nd September 2013))
Arrest and imprisonment are two of the things which are feared most by 498a accused persons. These fears are unfounded. The police cannot arrest you without recording a justification which will stand the scrutiny of all the courts from bottom to top. Otherwise there can be hell to pay. No sane police officer will risk the removal of his uniform to arrest a citizen on a whim. Remember that the police is functioning totally under the control of the courts in your 498a case. The courts are bound by the Supreme Court judgement mentioned above. This is complete guarantee that you cannot be arrested without justification.
Further, even the power (of the police) to arrest you WITH justification flies out the moment you file an anticipatory bail application. It is now for the courts to decide. They will do justice to you, for they know the law fifty times better than the police. Look at the speed with which Om Puri has got bail in his DV case.
The order of the commissioner of police of Delhi which says that the IO cannot arrest any accused without the written permission of the DCP concerned is nothing more than compliance with a court order coming from the highest court in the land. Similar orders ought to exist in all states, though this writer is not aware of any (perhaps because he has not bothered to search for them). To quote a portion of the above judgement "The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest." A quote from Nandini Satpathy vs. P.L. Dani would also not be out of place here. "...the policeman must be released from addiction to coercion and be sensitized to constitutional values."
Further, an amendment was made to the Criminal Procedure Code of India in 2009, in which section 41a CrPC was introduced inter alia. This section mandated that the IO will issue a notice of appearance to persons accused of offences which are punishable by up to 7 years in prison, which is to say offences which are punishable by sentences which are of a duration of 7 years or less. Section 498a, Section 406, and Section 34 all come within the ambit of this section. The section further says that if an accused person complies with the notice of appearance and continues to comply with further notices of appearance, then he can not be arrested unless the IO can justify such an arrest in writing with cogent reasons.
Lawyers protested this amendment vociferously because most of the income of lawyers comes from bail and anticipatory bail applications. (Incidentally section 498a composes a large number of anticipatory bail applications, and is very profitable.) The gazette notification of the amendment was deferred as a result of these protests, thus rendering it infructuous. However, the government surreptitiously notified this amendment in its gazette one fine day. This notification has led to the coming into force of this amendment. Now the rights of a 498a accused man are protected, and he is safe from arrest as long as he continues to keep going to the police station and other places which he is required to visit as part of his obligations in his capacity as an accused person in a criminal case. It may be noted that the IO is required to record his reasons in either case, whether he makes an arrest or does not make an arrest. This last modification in section 41a was made to appease the protesting lawyers. It can work in your favour if you remain in your senses.
You may also wish to read What is the CAW Cell Process After a 498a Complaint is made by a Wife? and/or Conditions at the Women's Police Station and/or Conditions at the Delhi High Court and/or Interrogation and Investigation by the Police in Dowry Cases.
Written by Manish Udar
Published by Manish Udar
Page created on 2nd September 2013
Last updated on 6th September 2013