Noushi Rafi v. Director General of Police, Thiruvananthapuram & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 WP(Crl.).No. 113 of 2009(S) ------------------------------------ PETITIONERS: NOUSHI RAFI, AGED 24 YEARS, W/O.K.AMEER RAFI, KOLADI HOUSE, B.P.ANGADI, THIRUR, MALAPPURAM DIST. BY ADV. SRI.P.BHASKARAN RESPONDENTS: 1. THE DIRECTOR GENERAL OF POLICE, THIRUVANAHTAPURAM. 2. THE SUPERINTENDENT OF POLICE, MALAPPURAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, THIRUR, MALAPPURAM. 4. SUB INSPECTOR OF POLICE, THIRUR, MALAPPURAM. - BY GOVT. PLEADER SRI.S.U.NAZAR FOR R1 TO 4 SRI.BABU.S.NAIR (AMICUS CURIAE) SRI.SUNNY MATHEW (AMICUS CURIAE) ADDL.D.G OF PROSECUTION (AMICUS CURIAE) SRI.P.VIJAYA BHANU (AMICUS CURIAE) THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON 30/06/2011 DELIVERED THE FOLLOWING: ## **APPENDIX** PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE COMPLAINT DT. 10.3.09 LODGED BY THE PETITIONER WITH THE FIRST RESPONDENT. /TRUE COPY/ ## A.K.Basheer & P.Bhavadasan, JJ. --------------------------------------------------- W.P.(Crl.)(Habeaus Corpus)No.113 of 2009 --------------------------------------------------- Dated this the 30[th] day of June, 2011 ## **JUDGMENT** ## **Basheer, J.** At about 7.30 a.m. on April 3, 2009, husband of the petitioner was allegedly taken into custody by some unknown people and taken to Kolhapur in Maharashtra. Petitioner alleges that the forceful abduction and removal of her husband to an unknown destination outside Kerala is clearly an illegal and high handed act warranting interference by this Court. She therefore, prays for issuance of a writ in the nature of Habeaus Corpus directing the respondents, who are the Director General of Police, Thiruvananthapuram, Superintendent of Police, Malappuram and his subordinate officers to produce the detenue before this Court and set him at liberty. 2. Apparently, petitioner seems to be aware that her husband was taken into custody by some lawful authority. But, according to the petitioner, even if some such authority had taken her husband into custody in connection with some crime, the said authority ought to have followed the procedure prescribed by law and the guidelines laid WPC(Crl)(HC) 113/09 2 down by the Apex Court in several cases. Petitioner submits that on further enquiry made by her, it has been learnt that her husband was taken to Kolhapur where he has been kept under unlawful detention. The Officers who took the detenue into custody did not bother to inform any of the near relatives of the detenue or the local police about the apprehension and detention. 3. Learned Government Pleader, after getting instructions, informed the Court that petitioner's husband Mr.Amir Rafi was taken into custody by Sri.M.B.Muluk, Police Inspector, Kagal Police Station, Kolhapur District, Maharashtra State at 9.50 p.m. at Tirur on March 4, 2009 in connection with Crime No.28/2009, registered at the Police Station referred to above, for the offences under Sections 395 and 341 of Indian Penal Code. Learned Government Pleader further submitted that the arrest was recorded only on March 6, 2009. The arrestee was not produced before the local Magistrate and his arrest was not intimated to any of his near relatives, including the petitioner. 4. In the statement filed by the Superintendent of Police, Malappuram, as directed by us, the above information was reiterated. It was further stated that the accused was produced before the jurisdictional Magistrate at Kagil in Kolhapur District of Maharashtra WPC(Crl)(HC) 113/09 3 State on March 6, 2009 and that the accused was in judicial custody ever since. 5. What is significant or disturbing is the fact that the police officer who came from Kolhapur had not bothered to make the arrest of the accused either in the presence of the Station House Officer of the local police station or to inform him or any of the near relatives of the detenue about the arrest, if any, made in Kerala. This procedure adopted by the police officer from Kolhapur appears to be ex facie illegal and irregular. 6. We have heard Sri.P.Bhaskaran, learned counsel for the petitioner and M/s.Vijayabhanu, Babu S.Nair and Sunny Mathew, who assisted the Court as amicus curie apart from Sri.Ravindranath, the learned Additional Director General of Prosecutions. 7. Our attention has been drawn to a large number of decisions in the course of hearing of this case. In **Joginder Kumar v. State of U.P. and others** (AIR 1994 SC 1349), a three Judge bench of the Apex Court held that no arrest can be made because it is lawful for the Police Officer to do so. The Court cautioned that the existence of the power to arrest and the justification for the exercise of the said power, it is quite another. The Court held further thus: WPC(Crl)(HC) 113/09 4 “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. ................... Denying a person of his liberty is a serious matter. .................. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified.” 8. The Court further laid down the following requirements for effective enforcement of the fundamental rights under Articles 21 and 22(1) of the Constitution of India. “1. An arrested person being held in custody is entitled, 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 told as far as is practicable that he has been arrested and where is being detained. (2) The police Officer shall inform the arrested person when he is brought o the police station of this right. (3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 1 and 22(1) and enforced strictly.” WPC(Crl)(HC) 113/09 5 ## 9. **In the matter of Madhu Limaye and others** ((1969) 1 SCC 292), another three Judge Bench of the Apex Court held thus: “Those who feel called upon to deprive other persons of liberty in the discharge of what they conceive of their duty must strictly and scrupulously observe the forms and rules of law.” 10. Arrest has not been defined either in the Code of Criminal Procedure (for short “the Code”) or in the Indian Penal Code or any other enactment dealing with criminal offences. However, Section 46 of the Code deals with the procedure or the manner in which arrest is to be made. But in this case we are only concerned with the apparent irregularity committed by the arresting officer. What is more glaring is the fact that the arresting officer did not evidently make any arrest in Kerala. It is borne out by the materials available before us that the husband of the petitioner was taken away out of Kerala even without recording his arrest here. This could not have been done. Nothing prevented the officer who came from Maharashtra to make the arrest and record the same in the manner prescribed. Thereafter the arrestee ought to have been produced before the local Magistrate before taking him away to Maharashtra. The officer has apparently WPC(Crl)(HC) 113/09 6 exercised his powers in flagrant violation of the procedure prescribed under law. 11. In **D.K.Basu v. State of West Bengal** (AIR 1997 SC 610), the Apex Court had occasion to consider the sad plight of large number of people in police lock ups. The Supreme Court issued the following requirements to be followed in all cases of arrest or detention till adequate provisions are made in that behalf: “(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 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 be either 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 counter signed 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, WPC(Crl)(HC) 113/09 7 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 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 WPC(Crl)(HC) 113/09 8 doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory Director, Health Services should prepare such a panel for all Tehsils and Districts as well. (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 through out the interrogation. (11) A police central room should be provided at all Districts 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 central room it should be displayed on a conspicuous notice board.” But, unfortunately, despite the directions or guidelines issued by the Apex Court and various other High Courts in large number of cases. Instances galore where the Police Officers make arrests and detain them in custody with impunity in flagrant violation of the procedure prescribed under law and the directives issued by the Apex Court. 12. We do not propose to burden this judgment with several authorities on the point and also on the salient features of the constitutional guarantee of personal liberty, as enshrined under WPC(Crl)(HC) 113/09 9 Articles 21 and 22 of the Constitution of India. We have referred only to some of the judgments which we thought would be relevant in the facts and circumstances of the above case. 13. Since it came on record later that the arrestee had been produced before the jurisdictional Magistrate in Kolhapur in connection with a crime registered against the husband of the petitioner and some others, petitioner is not entitled to get any relief in this writ petition. The Writ Petition is therefore closed. (A.K.Basheer, Judge) (P.Bhavadasan, Judge) tkv