Allahabad High Court
Sartaj S/O Mihd. Husain And Another vs State Of U.P.Thru. Secy. Home And Ors. on 14 July, 2010
Bench: Devi Prasad Singh, Yogendra Kumar Sangal
1
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW.
RESERVED
A.F.R.
Case :- HABEAS CORPUS No. - 383 of 2010
Petitioner :- Sartaj S/O Mohd. Husain and another
Respondent :- State Of U.P. Through Secretary Home and others.
Petitioner's Counsel :- Akhter Abbas
Respondent Counsel :- Advocate General, G.A.
Hon'ble Devi Prasad Singh,J.
Hon'ble Yogendra Kumar Sangal,J.
(Delivered by Hon'ble Devi Prasad Singh, J)
1. Present writ petition in the nature of habeas corpus has been preferred asserting that the petitioners were unlawfully detained by the police in pursuance to a First Information Report lodged on the allegation that the petitioner No.1 Sartaj had abducted the petitioner No.2 Afreen Bano who is alleged to be a minor.
Brief facts giving rise to the present controversy are discussed hereinafter :
2. A First Information Report dated 12.4.2010 in Crime No.391 of 2010 under Sections 363/366 I.P.C. was registered at Kotwali Nagar, Sitapur with the allegation that the petitioner No.1 abducted the petitioner No.2 Afreen Bano, a minor with oblique motive. Apprehending arrest in pursuance to the allegation contained in the First Information Report, the petitioner No.1 had preferred a writ petition No.4158(M/B) of 2010 in which by an interim order dated 6.5.2010, a Division Bench of this Court had stayed the arrest of the petitioner No.1 till filing of the charge-sheet. A copy of the interim order dated 6.5.2010 2 passed in writ petition No.4158M/B) of 2010 has been annexed as Annexure No.3 to the writ petition. It has been stated by the petitioner No.1 that in spite of the interim order passed by this Court, he was arrested by the police on 1.6.2010 and continued under detention up to 5.6.2010. It has also been asserted that Smt. Afreen Bano was also detained in the police station for about fourteen days.
3. The petitioners have pleaded that they entered into wedlock on 6.4.2010 through Nikah at Roop Nagar, Punjab. The petitioner No.2 passed High School with Roll No.0922313 and in the High School certificate (annexure No.2), her date of birth has been recorded as 20.4.1992. Accordingly, the submission is that the petitioner No.2 attained the age of majority on 19.4.2010. Since she attained the age of majority, she could not have been arrested by the police in the month of June, 2010.
4. On the other hand, it has been stated by the learned Advocate General that the petitioner No.2 was recovered by the police on 2.6.2010 and on the same day, medical examination was done. X-Ray was done on 3.6.2010 in district hospital Sitapur and she was permitted to stay in the house of lady Station House Officer of Mahila Thana Smt. Indu Chaubey Srivastava. Learned Advocate General emphatically argued that the petitioner No.2 was never detained or apprehended by the police. However, since the entire medical check-up was not done, she was permitted to stay in the house of Station House Officer of Mahila Thana from 2.6.2010 to 14.6.2010. On 14.6.2010 in pursuance to the order passed by this Court, she was sent to Nari Niketan, Lucknow and later on released on 17.6.2010 by Court's order. It has been further stated that the medical report was received on 16.6.2010. According to the medical report, she has attained the age of majority. The State has justified the stay of Afreen Bano at the residence of Station House Officer till receipt of the medical report on the ground that there was no place to keep her.
35. Rebutting the submission of the learned Advocate General, Shri Akhtar Abbas, learned counsel appearing for the petitioners submitted that the petitioner No.2 Afreen Bano was detained by the police forcibly at Mahila Thana for about fourteen days against all canons of justice which amount to custodial violence. It has been submitted that since the medical examination was done on 2.6.2010 and X-Ray admittedly was done on 3.6.2010, the respondents were not justified to detain the petitioner No.2 at police station. The submission is that only because the X- Ray report was not received, the police was not justified to detain the petitioner No.2 at police station. The petitioners' counsel has relied upon the judgments reported in 1997 Vol. 1 SCC 416 D.K. Basu versus State of West Bengal, (1997) 6 SCC 241 Vishaka and others versus State of Rajasthan and others, 1973 Cri.L.J. 1880 Ramdhani Pandey versus State of M.P., 2003 Cri.L.J. 1464 Mahendra Jain(Patni) and etc. versus Union of India and etc., 1995 Cri.L.J. 2754 A. Nallasivan versus State of Tamilnadu and others.
6. Attention of the court has been invited by the learned Advocate General to Regulation 162 of the U.P. Police Regulations which provides that as a rule, minor girls, specifically those termed as 'strayed' should not be kept in the custody of the police but in all such cases where the hospital or the dispensary with family accommodation exists, such girls should be made over to the hospital authorities as dieted patients.
7. The substantial question of law of public importance involved is :
"Whether a lady or a minor girl not being accused in a criminal case may be detained or permitted to stay at police station on any ground whatsoever ?
8. In the present case, admittedly, according to the High School 4 certificate, Afreen Bano, petitioner No.2 has attained the age of majority, i.e. exceeded the age of eighteen years, though on the date of alleged occurrence, she seemed to be minor. A statement was made before the Court that Afreen Bano wants to stay with Sartaj Ahmad, petitioner No.2. Accordingly, under police protection, she was permitted to go Hardoi along with the petitioner No.1 on 17.6.2010 subject to investigation of the pending criminal case. A defence has been taken by the State that the petitioner No.1 was never arrested and on 4.6.2010, he was called at police station so that his statement under Section 161 CrPC could have been recorded.
9. So far as the detention of the petitioner No.2 at the police station is concerned, it does not seem to be justified. The petitioner No.2 had attained the age of majority when she was recovered by the police on 2.6.2010. Though a defence has been taken that she stayed voluntarily at the house of Station House Officer of Mahila Thana, Sitapur along with her mother but defence taken by the police does not inspire confidence. Though the petitioner No.2 before the Court tried to submit that she stayed on her own but the surrounding facts and circumstances and the material on record do not speak so.
10. The only reason assigned by the respondents with regard to stay or detention of the petitioner No.2 at the police station is non-availability of medical report. According to the learned Advocate General, the medical report was received only on 16.6.2010. Whether non-availability of medical report justifies the police to keep a lady in the premises of police station. Why a lady along with her mother will stay at the police station when their house is situated in the same district at the distance of some kilometer ? Whether non-availability of medical report justified the detention of the prosecutrix in the police station voluntarily or involuntarily ? No material has been placed on record that the stay of the petitioner No.2 in the police station at the residence of Station House Officer, Mahila Thana was in 5 accordance with some rules or regulations or entry was made in the general diary assigning reasons. On the one hand, the police asserts that the stay was voluntarily and on the other hand, it has been stated that since the medical report was not made available by the hospital, the petitioner No.2 and her mother kept at the residence of the Station House Officer, Mahila Thana. The defence taken by the police seems to be self-contradictory.
11. In the case of Ramdhani Pande(supra), the Madhya Pradesh High Court held that restricting movement of a person by the police against his or her will amounts to arrest or unlawful detention.
12. In the case of Mahendra Jain(Patni), the Calcutta High Court ruled that in case a person is detained under the garb of interrogation for prolonged period, such person could be treated at par with accused and it will amount to custodial violence and violative of Article 21 of the Constitution of India.
13. In the case of A. Nallasivan(supra), Madras High Court declared an overnight detention of 90 women and 28 children in the Forest Ranger's Office as illegal and directed for C.B.I. enquiry.
14. Coming to the facts of the present case, the reason assigned by the police with regard to detention or stay of the petitioner No.2 at the house of Station House Officer, Mahila Thana for about two weeks seems to be a cooked up defence. After X- Ray on 3.6.2010, the petitioner No.2 should have been set at liberty to go her mother's house or wherever she wanted. Neither any restriction could have been imposed by the police nor she should have been permitted to stay in the police station alleged to be at the residence of Station House Officer along with her mother awaiting the medical report. Such action on the part of the police amounts to restrict the liberty of a person, hence violative of Art. 21 of the Constitution of India. In any 6 case, the petitioner could not have been detained at the police station awaiting medical report - whether it is voluntary or involuntary. In absence of powers conferred by the rules, the prosecutrix or the female or male witness of a case cannot be compelled to reside in the premises of the police station awaiting medical report. Such restriction under the garb of voluntary act amounts to abuse of process of law and an act of highhandedness on the part of the police.
15. In Immoral Traffic (Prevention) Act, 1956, an accused may be kept under safe custody in pursuance to the order, passed by the appropriate Magistrate under Section 17 of the Act to the maximum period of ten days.
16. Section 27 of the Act commands the State to establish protective homes. However, the case of the petitioner No.2 does not fall within the ambit of Immoral Traffic (Prevention) Act, 1956.
17. The Parliament has legislated the Juvenile Justice (Care and Protection of Children) Act, 2000 (In short, Act) for proper care, protection and treatment of children catering to their development needs and adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation.
18. Under Section 34 of the Act, it is the duty of the state to establish and maintain children's home in every district or group of districts.
19. Section 37 empowers the State government to recognize the reputed and capable voluntary organisations and provide them assistance to set up and administer shelter homes for juveniles as may be required.
20. The Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, Rules) contains detailed provision for protection and rehabilitation of children. The fundamental principles which 7 should be followed in the matter of children is given in Rule 3 of the Rules which consists principle of presumption of innocence, principle of dignity and worth, principle of right to be heard, principle of best interest, principle of family responsibility, principle of safety, i.e. no harm, no abuse, no neglect, no exploitation and no maltreatment, positive measures which involves the full mobilization of all possible resources, including the family, volunteers and other community groups, the principle of non-stigmatizing semantics, decisions and actions, principle of non-waiver of rights, principle of equality and non- discrimination, principle of right to privacy and confidentiality, principle of last resort, i.e. institutionalization of a child or juvenile in conflict with law and principle of repatriation and restoration, i.e. right to be re-united with family and restored back to the same sociao-economic and cultural status that such juvenile or child enjoyed before coming within the purview of the Act and lastly the principle of fresh start, i.e. promote new beginning for a child.
21. Under Rule 29 of the Rules, children's homes are to be constructed and under Rule 30, shelter homes for short stay should be recognised or earmarked.
22. Chapter V of the Rules deals with rehabilitation and social reintegration. Rule 38 of the Rules provides that the State shall set up an after care programme for the care of juveniles or children. The after care programme shall be made available for children aged 18-21 years. Rule 38 contains various necessary conditions to formulate after care programme for juvenile or children. Chapter VI of the Rules contains the standards of care for institutions. In nutshell, the Act and the Rules framed thereunder containing various provisions to take care of the children involved in criminal cases does not seem to cover the present controversy where the prosecutrix/petitioner No.2 stood as a witness in the criminal case and not an accused.
823. Much emphasis has been given to Regulation 162 of the U.P. Police Regulations which is reproduced as under :
"162. As a rule, minor girls, especially those termed as 'strayed' should not be kept in the custody of the police. In all cases where a hospital or dispensary with female accommodation exists, such girls should be made over to the hospital authorities as dieted patients.
The period for which it will be necessary for the dispensary to keep such girls will not exceed fifteen days save with the consent of the district board concerned."
24. The provisions contained in Regulation 162 of the U.P. Police Regulations does not seem to make out a case to defend the police action. The permissible limit of fifteen days may be enjoyed by placing the girl in the hospital and not within the premises of police station. Moreover, Regulation 162 of the Police Regulations seems to become redundant in view of the Juvenile Justice (Care and Protection of Children) Act, 2000. The provisions contained in U.P. Police Act regulating the minors' custody cannot be read in derogation of the statutory provisions (supra).
25. In the case of D.K. Basu(supra), their Lordships of Hon'ble Supreme Court has issued certain guidelines with regard to arrest and handling the interrogation of the arrestee. For convenience, relevant portion is reproduced as under :
"We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and 9 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, 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 he 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 trained doctor every 48 hours during his detention in custody by a doctor on the panel 10 of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal 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 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."
26. However, the case of D.K. Basu (supra) does not seem to cover the present controversy. The arrest of the petitioner No.1 was stayed by the Division Bench of this Court (supra), hence there was no occasion with regard to his arrest and detention by the police. The petitioner No.2 stood as a witness with regard to her own abduction and once, she submits that she had gone voluntarily along with the petitioner No.1 and entered into wedlock and attained the age of majority, then the police was not justified in curtailing her freedom of movement even temporarily in view of judgment of Hon'ble Supreme Court in the case reported in 2006 CrLJ 3309 Lata Singh versus State of U.P. and another.
27. It has been stated that in pursuance to provisions contained in Sections 8 and 34 of the Juvenile Justice Act, juvenile homes and shelter have been created all over the State but that too does not seem to empower the State to keep a witness in such home.
28. During the course of argument, it has been vehemently argued by the learned Advocate General, assisted by the learned Government Advocate that under law, there is no provision with 11 regard to the place where the prosecutrix or a witness may be detained during medical examination. Hence, often they are kept in police premises or Primary Health Centre and such action on the part of the police does not suffer from any impropriety or illegality. The submission of the learned Advocate General at the face of record seems to be violative of statutory provisions (supra) and even Regulation 162 of the U.P. Police Regulations which prohibits detention of a person (minor) in the police station.
29. It is settled law that in case the authorities want to do certain things, then that should be done in the manner provided in the Act or statutory provisions and not otherwise vide Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Versus State of Rajasthan, AIR 1961 SC 1527, Patna Improvement Trust Vs. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. Vs. Singhara Singh and other, AIR 1964 SC 358; Barium Chemicals Ltd. Vs. Company Law Board AIR 1967 SC 295, (Para 34) Chandra Kishore Jha Vs. Mahavir Prasad and others, 1999 (8) SCC 266; Delhi Administration Vs. Gurdip Singh Uban and others, 2000 (7) SCC 296; Dhanajay Reddy Vs. State of Karnataka, AIR 2001 SC 1512, Commissioner Of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and others, 2002 (1) SCC 633; Prabha Shankar Dubey Vs. State of M.P., AIR 2004 SC 486 and Ramphal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657, Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nika Ram Vs. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke Vs. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another Vs. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others Vs. J.A.C. Saldanna and others, AIR 1980 SC 326, A.K.Roy and another Vs. State of Punjab and others; AIR 1986 SC 2160; State of Mizoram VS. Biakchhawna, 1995 (1) SCC
156. 12 It is also settled law that what cannot be done directly, it cannot be done indirectly vide 2004 (12) SCC 713 Ram Chandra Singh versus Savitri Devi and others. The authorities cannot be permitted to use the premises of the police station for any purpose except for what it has been meant for. In case, they are permitted to do so, then it shall create a gallery to abuse the process of law keeping in view the moral devaluation in our system.
30. A Division Bench of this Court, of which one of us (Hon'ble Devi Prasad Singh, J) was a member, in a writ petition No.443(H/C) of 2007 Siyaram alias Shukul versus State of U.P. and other connected petitions, held that the provisions contained in Section 160 of the Code of Criminal Procedure is mandatory and it shall be obligatory on the part of the State authorities/police to issue notice for the summoning of witness to record the statement of the witnesses. Direction was issued to issue appropriate circular. Operative portion (para 58) of the judgment of Siyaram alias Shukul (supra) is reproduced as under :
"58. Under the facts and circumstances of the case and keeping in view the present trend of functioning of the police in the State of U.P. as reflected from the discussions made hereinabove, it is necessary not only to provide some compensation to the petitioner but also appropriate direction should be issued to check the recurrence of unlawful detention, custody or harassment of common citizen by the police keeping in view the Apex Court's judgment in D.K. Basu's case. In view of above, we propose to pass the following order for compliance by the respondents :
i) The petitioners shall be entitled for compensation to the tune of Rs.1, 25,000/- from the Government of U.P., out of which Ram Ashish alias Pintu shall be entitled for 13 Rs.50,000/- and others shall be entitled for Rs.25,000/-
each on account of their unlawful detention/restraint in the police station Ram Sanehighat, district Barabanki. The respondent/State is directed to pay the compensation within two months accordingly. This shall be apart from the compensation or damages which the petitioners may be entitled in accordance with law from regular Court.
ii) The Control Room constituted in every district of the State of U.P. in pursuance to the Apex Court's judgment in D.K. Basu's case(supra) shall also contain the records pertaining to the names of persons along with particulars of criminal case in which a person is being summoned or called in the police stations of respective district for questioning or for any other purpose. No witness or a person shall be called in the police station in the night without prior approval of the Superintendent of Police of the district concerned subject to restrictions imposed by Hon'ble Supreme Court in the case of D.K. Basu's case(supra). This may be done by establishing a computer network and use of information technology.
iii) It shall be mandatory for the law enforcing agencies to serve a notice in writing under Section 160 CrPC before calling a person in the police station. No person shall be lifted, frisked from their home unless a notice in writing is served assigning reason therein. In the general diary, appropriate entries shall be made indicating the arrival and departure of such person to/from such police station, disclosing reason of summoning of such person. The respondents are further directed to comply with the Apex Court's judgment in D.K. Basu's case(supra) in its letter and spirit.
iv) Every person, who is called to the police station during the course of investigation and enquiry, should be permitted to attend the police station along with his next friend or family 14 member and he or she should be informed of his right to call his lawyer during the course of questioning.
v) Let entire staff of police station Ram Sanehighat, district Barabanki be transferred to other region/far off districts forthwith."
31. Neither the Code of Criminal Procedure nor any other statutory provisions empowers the police to retain the witness, in the present case, the prosecutrix within the premises of police station awaiting the medical report.
32. Ordinarily, in such a situation where a female is produced before the doctor for medical examination which includes X-Ray to verify age, then necessary check-up should be done by the doctors immediately and report should be provided as early as possible. Doctors do not seem to be justified in keeping the matter pending for two weeks and providing report to the police only on 16.6.2010 though the X-Ray was done on 3.6.2010. There appears to be inaction on the part of the doctors in not providing the report of the medical examination and outcome of X-Ray at the earliest to the police and under the garb of such lapse on the part of the hospital, the police kept the petitioner No.2 in police station for about two weeks. The State Government must issue appropriate Government Orders or circulars to ensure that as and when an accused, witness or prosecutrix is produced before a doctor, then the medical examination including X-Ray must be done immediately or maximum within 24 hours and report should be given on the next day to the police so that the investigation may not be held up for want of medical report.
33. During the period of medical investigation in case it continues for more than 24 hours, then the prosecutrix or the witness should be kept in the hospital/Primary Health Centre itself or in shelter home established under the statutory provisions but not within the premises of police station. A country where more 15 than 35% population are illiterate and almost 40% peoples are living below the poverty, it is not expected that people are conscious of their constitutional and statutory rights. With the fear of police atrocity, a statement may be given supporting police version. Still the legacy of British rule subsists and the police is not treated as friend. It is not easy for a common citizen to enter into premises of police station and lodge a First Information Report. In such situation, in case the police is permitted to detain a person/witness in its campus for any reason whatsoever, there may be more likelihood of abuse and violation of human rights than to secure the peoples' interest.
34. By catena of judgments, Hon'ble Supreme Court settled the law that the dignity and quality of life and privacy of citizen are fundamental rights protected by Art. 21 of the Constitution of India vide 2001(6) SCC 496 Hinch Lal Tewari versus Kamala Devi and AIR 1991 SC 1902 Banglore Medical Trust versus B.S. Mudappa, AIR 2007 SC 1046 Milkmen Colony Vikas Samiti versus State of Rajasthan and others and 2006(13) SCC 382 Nagar Nigam, Meerut versus Al Faheem Meat Exports Private Limited and others.
35. In a civilized society, more so when the matter cropped up with regard to ladies, police must be cautious while using the premises of the police station which includes the residence of officers posted there to keep the witnesses for any reason whatsoever. Keeping in view the analogy that an accused is to be produced before the Magistrate within 24 hours, no person including a witness should be kept in police station for interrogation for a long period in violation of the direction, issued by the Hon'ble Supreme Court in the case of D.K. Basu(supra) and this Court (supra).
36. The Universal Declaration of Human Rights (10.12.1948) begin its preamble with the strong assertion recognising the inherent human dignity and of the equal and inalienable rights of all 16 members of the human family as the foundation of freedom, justice and peace in the world.
Needless to say that dignity is a complex idea possessing philosophical, political and legal resonances. As a social and legal status, dignity has to be nourished and maintained by society and all the three wings of the government by enforcing constitutional mandate in its letter and spirit.
37. The social upholding of individual dignity furnishes the basis of a general assurance of decent treatment and respect as people live their lives and go about their business in public.
38. A well ordered society means a society fully and effectively governed by a conception of justice or rule of law. John Rawls in his most celebrated treatise, "A Theory of Justice" had rightly observed that the society governed by justice means based on strict compliance theory rather than partial compliance theory.
39. Edmund Burke in his treatise, "Reflections on the Revolution in France", had observed, to quote :
"to make us love our country, our country ought to be lovely."
A country shall be lovely only in case every one get his or her due right, with dignity. (A Professor in New York University).
40. Professor Jeremy Waldron in his "Oliver Wendeli Holmes Lecturers (2009)" published in Harvard Law Review( May 2010) observed :
"We are talking about a display that matters practically to individuals. It matters to them in their reliance on the principles of justice in the ordinary course of their lives, and in the security with which they enjoy that reliance. In a well-ordered society, where people are visibly impressed by signs of one another's commitment to justice, everyone can enjoy a certain assurance as they go about their business.17
People know that when they leave home in the morning they can reasonably count on not being discriminated against, humiliated, or terrorized. They feel secure in the basic rights that justice defines; they can face social interactions without the elemental risks that interaction would involve if one could not count on others to act justly."
Learned author further proceed to observe :
"The point of the visible self-presentation of a well- ordered society, then, is not just aesthetic; it is the conveying of an assurance to all citizens that they can count on being treated justly."
Learned author further observed, to quote :-
"A person's dignity is not just a decorative fact about him or her. It is a matter of status, and as such, it is in large part normative : it is something about a person that commands respect from others and from the state. Moreover, one holds a certain status not just when one happens to have a given set of rights or entitlements, but also when the recognition of those rights or enttlements is basic to how one is treated. So it is with the fundamentals of social reputation. We accord people dignity on account of the sorts of beings human individuals."
41. Ronald Dworkin in his celebrated treatise, "Law's Empire"
observed, to quote :
"All this is a matter for the government to handle. The government is the entity that is required to display equal concern and respect for all its 18 citizens........................but the citizen themselves do not share an identical obligation."
42. Criminal Justice System must be legitimate based on just and fair procedure to avail the peoples' confidence which has got direct nexus with the object sought to be achieved. By adopting an unjust, improper and illegitimate method while making investigation in criminal cases, State will lose the peoples' confidence and in due course of time, the peoples will settle their score at their own end by approaching mafias or anti- social elements.
43. In an article titled, "Prosecutorial Power and the Legitimacy of the Military Justice System" published in Harvard Law Review, Vol. 123, February 2010 part, observation of Robert H. Jackson in a book, "The Federal Prosecutor" has been referred. To quote:
"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous..........While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."
44. In our administration of justice, the power vests in police to investigate and stand as witness to prosecute the accused. The prosecutorial power in America is vested in an independent agency which comes into action at initial stage. In our country, the role of the prosecuting agency ordinarily starts from submission of the charge-sheet by the police. Heavy burden lies on the police to act fairly upholding the dignity of the citizen within the four corners of law.
45. Learned author(supra) with regard to legitimacy in criminal 19 justice system observed as under :
"Legitimacy is an essential feature of an effective system of criminal justice. In order to maintain authority over those it regulates, a criminal justice system must remain legitimate in the eyes of those people. When people perceive the criminal process as fair and legitimate, they are more likely to accept its results as accurate and are more likely to obey the substantive laws that the system enforces. Moreover, such people are more likely to cooperate with police and prosecutors, who necessarily rely on the trust of the community to carry out their roles in the criminal justice system."
..........................the legitimacy of criminal procedure is enhanced when observers and defendants believe that prosecutors are pursuing justice. Incidents of prosecutorial misconduct undermine this element of institutional legitimacy and threaten to create the impression that prosecutors are seeking personal gains rather than just outcomes. Prosecutorial misconduct and arbitrariness can also undermine a third dimension of systemic legitimacy; uniformity of outcome. Disparate treatment of similarly situated defendants - whether it appears to be the result of invidious discrimination or prosecutorial whim - can harm popular faith in the criminal justice system."
46. The opinion expressed by the author(supra) seems to be correct to maintain the human dignity and casts a duty on the police to behave properly in a dignified manner without interfering directly or indirectly with the dignity of human being which is protected by Art. 21 of the Constitution of India. A thing which cannot be done directly, it cannot be done indirectly. Criminal Justice System in our country requires a second look 20 to regulate and keep the police action within the four corner of law.
47. While dealing with criminalisation of politics and mafia in a case reported in 2006 LCD 1243, Chandrika Prasad Nisad Vs. State of U.P. decided by one of us(Hon'ble Devi Prasad Singh, J), it has been opined that time has come to bifurcate the investigating agency of the police force from the law and order. The police force dealing with law and order should be confined only upto registration of the First Information Report. Thereafter, the matter should be referred to the investigating agency which should discharge its obligation in proper manner without encroaching upon the dignity and quality of life of the citizens. For betterment of the system, the government should consider to separate investigating agency from law and order.
48. Thus, for the police, if it is permitted to keep a witness in the premises of police station awaiting medical opinion, then so far as the reputation and dignity of the person concerned in the eyes of common citizen is concerned, undoubtedly, a long stay in the premises of the police station shall tarnish the image and reputation of such person. Of course, in case there would have been some statutory provisions to deal with such situation validating the police action, there may be valid ground for detention or stay of a witness in the eyes of common citizen but in absence of any statutory provision, such action shall adversely affect the dignity of such person in peoples' eye.
49. In view of above, while holding that the petitioner No.2 was wrongfully detained at the police station we also propose to issue directions to meet out the requirement till the State Government legislate law itself to meet such contingencies. The petitioners have already been released, hence no further order is required to that extent.
2150. In view of above, we allow the writ petition and issue a writ in the nature of mandamus commanding the state of U.P. as under :
1. No person who is a witness in a case, female or male shall be permitted to reside or be detained in the police station awaiting medical check-up or medical report or for any other reason for more than 24 hours. For medical examination, such person may be permitted to stay for limited period to the maximum of three days in the hospital/Primary Health Centre or other statutory home or shelters. If necessary, appropriate police protection may be provided during such stay at a place other than police station.
2. The Government shall ensure that the medical examination of the prosecutrix or a witness or the person involved in a criminal case be done on the same day or within the maximum period of 24 hours and the hospital/Primary Health Centre shall ensure to submit the report by the next 24 hours to the police station concerned. Let appropriate circular be issued accordingly forthwith.
3. The Chief Secretary, Government of U.P. Is directed to appoint a Committee of experts which shall frame appropriate guidelines for medical examination/submission of the report to the police/investigating agency keeping in view the time involved in such medical or pharmacological examination, expeditiously and preferably within a period of two months from the date of receipt of a certified copy of this order.
Since the petitioner No.2 was kept in the premises of the police station for about two weeks without justifiable reason causing mental pain and agony and her stay has been held to be violative of Art. 21 of the Constitution of India, she shall be entitled for the compensation/cost, to the tune of Rs.25,000/- from the state Government which shall be deposited in this 22 Court within two months from today with liberty to the petitioner to withdraw the amount so deposited.
It shall be open for the petitioners to avail appropriate remedy for further compensation and action permissible under law.
Let a copy of the order be sent to the Chief Secretary, Government of U.P. for compliance and to issue appropriate order or circular in terms of the aforesaid direction and submit a compliance report within three months. Registry to take follow- up action.
The writ petition is allowed accordingly.
(Justice Yogendra Kumar Sangal) (Justice Devi Prasad Singh) July 14, 2010 kkb/ 23 l