TMI Blog1994 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ram to the Chief Minister of U.P. apprehending his brother s implication in some criminal case and also further apprehending the petitioner being shot dead in fake encounter. 3. In spite of the frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of 7-1- 1994, it came to be known that petitioner is detained in illegal custody of 5th respondent, SHO, P.S. Mussoorie. 4. On 8-1-1994, it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. So far the petitioner has not been produced before the Magistrate concerned. Instead the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for release of the petitioner. 5. 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, the present petition has been preferred for the release of Joginder Kumar, the petitioner herein. 6. This Court on 11-1-1994 ordered notice to State of U.P. as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Aclams case (People v. Adams2) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re3: The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise. The quality of a nation s civilisation can be largely measured by the methods it uses in the enforcement of criminal law. 11. This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p. 1032) quoting Lewis Mayers stated: (SCC p. 433, para 15) The paradox has been put sharply by Lewis Mayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all. As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure. 13. Whenever a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is effected. 14. Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is effected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Counc il/Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identify himself so that a summons may be served upon him; (b) the need to prevent the continuation or repetition of that offence; (c) the need to protect the arrested person himself or other persons or property; (d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and (e) the likelihood of the person failing to appear at court to answer any charge made against him. The Royal Commission in the above said report at p. 46 also suggested: To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case...... 20. In India, Third Report of the National Police Commission at p. 32 also suggested: An arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. 21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides: [W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements: 1. An arrested person being hel ..... 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