No One Can Be 'Summoned' To Police Station Orally By Subordinate Police Officials Sans Station Incharge's Approval: Allahabad High Court

In a significant direction issued to the State of UP and its instrumentalities, the Allahabad High Court (Lucknow Bench) has recently observed that no person, including an accused can be summoned to a police station orally by subordinate police officials without the consent/approval of the station in-charge.

The Bench of Justice Arvind Kumar Mishra-I and Justice Manish Mathur further directed the authorities thus:

"In case any application or complaint is given at any police station which requires investigation and presence of the accused then a suitable course of action as prescribed under provisions of Criminal Procedure Code are to be followed which contemplate a written notice being served upon such a person but that too only consequent to a case being registered."

The bench issued these directions while stressing that the life, liberty, and dignity of any person can not be thrown to the winds merely on verbal orders of police officials.

The background of the case at hand

A letter petition was filed before the High Court wherein a girl (Sarojani) had alleged that her parents (Ram Vilas and Savitri) were called to the Police Station- Mahila Thana, Lucknow, from where they did not return back.

The petition was treated as Habeas Corpus and was heard on April 8, 2022, wherein, the A.G.A. on behalf of the State brought to Court's notice that no such occurrence had taken place at the police station.

On the next date of hearing (April 13), the petitioners Savitri and Ram Vilas and their daughter informed came up before the Court and informed the Court that some police personnel called them to the police station and when they went to the police station, they were detained and threatened by some police personnel.

On that very day, the Inspector of the concerned thana told the Court that in connection with a dispute over the partition of ancestral property, the petitioners had visited the police station on April 8 at around 12 noon and after recording their statements, they were allowed to leave the police station at around 3.30 p.m., the same day. 

However, she sought an unconditional apology and submitted that there was no deliberate attempt to humiliate or harass the petitioners but it was misconduct and in-subordination of a Constable, otherwise there was no cause for the police to have indulged in any maltreatment of petitioners. 

Against the backdrop of these circumstances, the Court observed thus:

"In such case, we, after deliberation express unhesitatingly that there appears to be someone amongst the police personnel who fished in troubled waters and took advantage of the situation both to the detriment of private parties as well as to the working efficiency of the police system and in particular the police station concerned. It is incumbent and obligatory upon the police authorities concerned to nip the mischief in its bud.The right of a citizen not to be detained or restrained by the State or its instrumentalities without the backing of any law is fundamental as reflected in Articles 19(1)(d), 21 and 22 of the Constitution of India."

Further, the Court referred to landmark rulings of the Supreme Court on Freedom of movement, Right to life, Right to liberty vis-a-vis Article 21 and Article 22 of the Constitution of India, including Justice Fazl Ali's minority opinion in the case of A.K. Gopalan versus State of Madrass, A.I.R. 1950 Supreme Court 27. The Court also referred to Justice Subba Rao's view in the case of Kharak Singh versus State of U.P., A.I.R. 1963 Supreme Court 1295.

Further, the Court noted that the guarantees envisaged by the Constitution of India in part (III) can be restricted or controlled only in accordance with provisions of aforesaid Articles constituted in part (III) itself. The Court, significantly, underscored that the power of locomotion is an essential element of personal liberty and detention in jail or in a police station is a drastic invasion of that liberty.

Now, in view of the facts of the instant case, the Court stressed that there is no provision in either the constitution of India or CrPC which prescribes a police official to summon and detain the person even without lodging of a first information report and that too orally.

Significantly, the Court even opined that any such action by police personnel has to be seen in the context of the right to personal liberty as envisaged under Article 21 and that means a procedure which is fair, just, and reasonable is required to be followed.

"The action taken by police personnel in the present case indicates clear flouting of the right guaranteed to the petitioners under Articles 14, 19, 21 and 22 of the Constitution since oral summoning of the petitioners and their subsequent detention in police station has been resorted to without even lodging of first information report...It is the bounden duty of State and its instrumentalities to be ever vigilant so that fundamental rights guaranteed under part (III) of the Constitution are not infringed, particularly without any authority of valid law which would have a deleterious effect on an ordered society." the Court further added.

In view of the aforesaid, the Court issues the following directions to the State and its instrumentalities:

- In case any application or complaint is given at any police station which requires investigation and presence of the accused then suitable course of action as prescribed under provisions of Criminal Procedure Code are to be followed which contemplate a written notice being served upon such a person but that too only consequent to a case being registered.

- In case there is no investigating officer at that juncture, the subordinate police officials are required to take permission/approval of the station incharge before issuing such notice or summons.

- On no account can an accused or any other person be summoned to a police station orally by subordinate police officials without the consent/approval of the station incharge.

With the aforesaid observations, this petition for habeas corpus was finally disposed of.

Case title - Ram Vilas Thru. Daughter Sarojani And Another v. State Of U.P. Thru. Prin. Secy. Home And Others [HABEAS CORPUS WRIT PETITION No. - 80 of 2022]

Case Citation: 2022 LiveLaw (AB) 227

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