# Sartaj and another v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-14
- **Case number:** Habeas Corpus No. 383 of 2010
- **Bench:** Devi Prasad Singh, Yogendra Kumar Sangal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sartaj-and-another-v-state-of-u-p-and-others-41674
- **Pages:** 14

## Headnote

Constitution of India Art. 226- Habeas
Corpus writ-Petitioner alongwith his wife
detained in Police Station inspite of stay of
arrest-detention of 5 days-Police tried to
justified its stand in garb of medical check
up-held-unjustified in absence of statutory
provisions court issued guide lines-strictly
prohibited the detention at Police station
for more than 24 hours for medical checkup-govt. Directed to take follow up action
by forthwith.

Held: Para 48 & 50

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.

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:

## Text

_Characters 0–39,883 of 45,492. This is a partial read: ask again with offset=39883 for what follows._

2 All] Sartaj and another V. State of U.P. and others
659
issue which is penury or financial
hardship, ordinarily the matter must be
dealt with at the earliest. The authorities
also who have to consider the application,
must
complete
this
exercise
of
consideration within six months of the
application being received.

12. The appeal is accordingly,
allowed. The impugned judgement of the
learned Judge dated 5th of February, 2003
and the order dated 28th February, 2002
are set aside. The competent authority, on
a copy of this judgement being served on
it, to take a decision in accordance with
law at any rate not later than eight weeks
from today and communicate the same to
the appellant. It will be open to the
competent authority to call for additional
details considering the long passage of
time. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Habeas Corpus No. 383 of 2010

Sartaj and another

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Akhter Abbas

Counsel for the Respondent:
Advocate General
G.A.

Constitution of India Art. 226- Habeas
Corpus writ-Petitioner alongwith his wife
detained in Police Station inspite of stay of
arrest-detention of 5 days-Police tried to
justified its stand in garb of medical check
up-held-unjustified in absence of statutory
provisions court issued guide lines-strictly
prohibited the detention at Police station
for more than 24 hours for medical checkup-govt. Directed to take follow up action
by forthwith.

Held: Para 48 & 50

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.

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
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 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.
Case law discussed:
AIR 1936 PC 253, AIR 1961 SC 1527, AIR
1963 SC 1077, AIR 1964 SC 358, AIR 1967 SC
295, (Para 34), 1999 (8) SCC 266, 2000 (7)
SCC 296, AIR 2001 SC 1512, 2002 (1) SCC
633, AIR 2004 SC 486, AIR 2004 SC 1657,
(1876) 1 Ch.D. 426, AIR 1972 SC 2077, AIR
1975 SC 915, AIR 1979 SC 1573, 1995 (1) SCC
156, AIR 1986 SC 2160, AIR 1980 SC 326,
2004 (12) SCC 713, 2001(6) SCC 496, AIR
1991 SC 1902, AIR 2007 SC 1046, 2006(13)
SCC 382.

(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 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
2 All] Sartaj and another V. State of U.P. and others
661
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. XRay 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.

5. 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 XRay 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 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
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 nonavailability 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 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
2 All] Sartaj and another V. State of U.P. and others
663
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 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 ٛ
riminalizati
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 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 nonstigmatizing semantics, decisions and
actions, principle of non-waiver of rights,
principle
of
equality
and
nondiscrimination, 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
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
restored back to the same sociaoeconomic 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 ٛ
riminaliz 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.

23. Much emphasis has been given
to Regulation 162 of the U.P.Police
Regulation 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 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 All] Sartaj and another V. State of U.P. and others
665

(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 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
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 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.

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
2 All] Sartaj and another V. State of U.P. and others
667
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 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.
668 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

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
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 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.
2 All] Sartaj and another V. State of U.P. and others
669

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 ٛ
riminaliza the inherent human dignity and
of the equal and inalienable rights of all
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. 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 selfpresentation of a well-ordered society, then,
is not just aesthetic; it is the conveying of an
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 ٛ
riminalizat 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 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 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
2 All] Sartaj and another V. State of U.P. and others
671
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.