DR. RINI JOHAR & ANOTHER v. STATE OF M.P. & OTHERS

(2016) 11 SCC 703

COURT: Supreme Court of India

BENCH: Dipak Misra, K. Singh, JJ.

DATE OF JUDGMENT: 3rd June, 2016

PARTIES:

Petitioners: Dr. Rini Johar, Adv Gulshan Johar and Guy Coggins

Respondents: Deepak Thakur; Dy. S.P., Cyber Cell, Bhopal; Ishrat Khan, Head Constable, Cyber Cell, Bhopal; Inderpal, Writer, Cyber Cell, Bhopal; Saurabh Bhatt, Clerk, Cyber Cell, Bhopal; Vikram Rajput

INTRODUCTION

The definition of Human Rights explicitly talks about freedom that belongs to each and every individual from the moment he comes into the world, till his last breath, in the form of values like dignity, fairness, equality and independence. All these rights are defined and protected by law.

The legal system of India is entrenched on the platform of “innocent till proven guilty”. The principle of Natural Justice must be taken care of while arresting an accused. Every individual is equal before law hence; no human shall be denied his rights.

According to the National Human Rights Commission guidelines, women police officer/constables should guard female accused while arresting them and should avoid the arrest between sunset and sunrise.

In this case, the Apex Court talks about the gross negligence of guidelines of arrest by the police and the rights and the facts to be taken care of while executing arrest of a woman.

FACTS

• Rini Johar (Petitioner No 1) is a doctor who is associated with M/s Progen, a US company which deals in equipments and other electronics. Her mother Gulshan Johar (Petitioner No 2) is a lady in her 70’s and an Advocate at District Court, Pune.

• Vikram Rajput (Respondent) is interested in buying an Imaging Equipment from M/s Progen. He sent a mail to the company for purchase of the machine. In revert; the company gave the contact details of petitioner 1 and 2 referring them the members of the company.

• Mr. Vikram went to Indore to purchase the machine and after due enquiry he decided to purchase a machine different from the one he enquired about. He purchased a machine of lesser value named “Twinaura Pro” and paid a sum of Rs. 2, 50,000/- for which a hand written receipt was given to him as proof. The actual price of the machine was Rs. 2, 54,800. Mr. Vikram acknowledged it by stating that he owed Rs.4800 as a balance towards the Imaging Machine and he assured that he would remit the money within a short time. During the course of meeting, he expressed a desire to purchase a laptop of M/s Progen Ltd. of which Petitioners 1 & 2 were representatives. In pursuance of discussion laptop was given to him. Vikram never rose grievance relating either to the machine or the laptop.

• Vikram Rajput lodged an FIR before Inspector General of Police, Cyber Cell, Bhopal, alleging that Dr. Rini Johar and Mr. Guy Coggin (Petitioner No 3) had committed fraud.

• Dr. Rini Johar, Gulshan Johar and Guy Coggins were arrested from Indore and then taken to Bhopal, in an unreserved railway compartment marked ‘viklang’. There were no women police officers. Despite request, Adv. Gulshan Johar, was not given medical assistance and was made to sleep on the cold floor of the compartment. They were brought without giving any food or water and were handcuffed.

• The accused were not presented before the Magistrate within 24 hours of arrest and were kept in custody for 17 days and 21 days respectively. Neither were the accused allowed to consult a lawyer nor was any relative or close friend was informed. The police did not do any medical examination of the accused. The police did not prepare any memorandum of arrest. The accused were produced before the court and Adv. Gulshan and Guy Coggins were released on Bail after custody of 17 days and Dr. Rini was given bail after 21 days.

• The accused claimed gross violation of Human Rights and said that the legal guidelines regarding arrest as mentioned in the Code of Criminal Procedure and Right to Life as guaranteed under Article 21 of the Constitution has been violated.

ISSUE

Whether a person can be arrested in the manner in which police made arrest in the instant case?

JUDGMENT

• In the present case, the police arrested Dr. Rini, her mother and Guy Coggins from Pune, and there were no women police officers to take custody of the female petitioners. The proviso to Section-46 CrPC provides that in case of arrest of women an oral intimation of arrest would suffice to consider the custody and a male police officer cannot touch the body of a woman to be arrested to take her into custody. But, in the instant case the above-mentioned provision was violated as there were no women officers to arrest the female accused.

• When the accused were arrested, they were handcuffed which was not required as they were cooperating and did not try to escape. As per Section-49 of CrPC the accused were subject to more restraint than necessary to secure their escape.

• The accused were not presented before the magistrate before 24 hours and after the expiry of such period the custody of accused would be considered illegal and would amount to illegal detention. The police did not prepare any memorandum of arrest as prescribed under Section-41B Clause (b). No family member or any close friends of the accused were informed.

• It was after 17 days that Gulshan Johar and Guy Coggins were given bail and Dr. Rini Johar was relieved on bail only after 21 days of custody. The provision of Section-41 D where the accused is allowed to meet a lawyer of his choice was also violated and the accused were not allowed to take any legal assistance.

• There has also been a violation of Article 21 of the Constitution as the aggrieved were compelled to face humiliation and were treated with an attitude of insensibility. The dignity of a doctor, lawyer and an aggrieved has been jeopardized.

The Apex court said that the freedom of an individual has its own sanctity and in the instant case liberty of the petitioners was curtailed in an unlawful manner violating the existing law. It will be likely on the part of the aggrieved to feel anguished, agonized, shaken, perturbed, disillusioned and emotionally torn by the attack on their identity.

Thus, it can be said that the arrest conducted by the police violated the provisions of arrest as mentioned in CrPC and also violated the rights guaranteed under Article 21 of the Constitution of India.

CONCLUSION

Constitution allows for the exceptions of fundamental rights, but those exceptions are to be followed with the due process laid down in the law. It is lawful for a police officer to arrest but with due diligence. The existence of power of arrest is one thing and the exercise of such power is another. There shall be no arrest made without reasonable satisfaction reached after some investigation. The Apex Court fairly said while giving one of its judgements that the concept of arrest brings humiliation, curtails freedom and casts scars forever.

The horizon of human rights is expanding and the crime rate is increasing, there has to be a balance made between the two. A realistic approach should be made in this direction.