I.S.MATHUR, J. - (1.) One would have thought that after the decision of Hon'ble Supreme Court in, Kharak Singh v. State of U.P., AIR 1963 SC 1295; Malak Singh v. State of P.and H.(1981) 1 SCC 420 : (AIR 1981 SC 760) and Govind v. State of Madhya Pradesh, AIR 1975 SC 1378, the Police would not have encroached upon the fundamental right of a citizen guaranteed under Article 21 of the Constitution of India by making "domiciliary visits" to the house of the citizen during night hours and insisting the citizen to go to the police station without any reason.
(2.) Undoubtedly, the police has been vested with the power to make searches, enter into the house of a person to arrest him if any cognizable offence is reported against a person under the provision of the Cr. P.C.in accordance with law, but it cannot make an inroad into the house of a citizen without cognizable offence being reported to it. The English Common Law Maxim says that "every man's house is his castle" or "the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose" has been accepted as law by the Courts in India. The said Maxim is imbedded under Article 21 of the Constitution itself.
(3.) In, Kharak Singh v. State of U.P., AIR 1963 SC 1295, it was observed that "domiciliary visits" is violative of Article 21 of the Constitution and there is no law on which it can be justified. Hon'ble Mr. Justice K.Subba Rao and Hon'ble Mr. Justice J.C.Shah, in their minority judgment declared the entire Regulation 236, consisting of Clauses (a) to (f) pertained to surveillance as unconstitutional on the ground that it infringed, both Article 19(1) and Article 21 of the Constitution. Hon'ble Mr. Justice N.Rajagopal Ayyangar speaking on behalf of majority of the Judges, constituting the Bench indicated that the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect and Article 21 has no relevance in that context. For, the right of privacy is not a guaranteed right under the Constitution, and therefore, the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.The majority did not favour the view of Hon'ble Mr. Justice K.Subba Rao (as he then was) and his brother Judge Hon'ble Mr. Justice J.C.Shah (as he then was).;