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Zakiamlova Vs. Deputy Commissioner - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantZakiamlova
RespondentDeputy Commissioner
Excerpt:
.....hours fixed by section 61, and there are grounds for believing that the accusation or information is well founded the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest. the learned public prosecutor was unable to lay his hands on any paper to show that any cognizable offence was complained of against the accused or that even now there is any credible information or credible material from which it can be said that the accused has even been suspected to have committed any cognizable offence. we are, therefore satisfied that the detention of the petitioner in this case is illegal and we hold it to be so. we have passed these orders both under the habeas corpus..........remand orders from the magistrate is at all legal.2. the material portion of section 54 of the code of criminal procedure which is called in aid by the learned public prosecutor and under which the report was submitted, may be read:54. (i) any police officer may, without an order from a magistrate and without a warrant arrest- first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;* * * * before the first part of section 54 (i) of the code of criminal procedure is invoked, it is necessary that the accused must be concerned in a cognizable offence or there must be a reasonable complaint made against him that he has.....
Judgment:

P.K. Goswami, C.J.

1. This application is from jail by the petitioner who was arrested on 29-9-70 at Silchar town. The report to the Magistrate is in the following terms and we would like to quote the same in extenso:

To,

The S.D. M(Ex) Silchar Court

Through the P.I. Silchar Court.

Ref : - Arrest Under Section 54 Cr.P.C. of Silchar P.S.

Sir

I have the honour to forward herewith the following accd. person into custody who has been arrested Under Section 54 Cr. P. C, with a view to take up a cognizable case. He was brought to the P.S. by one Khiang Thuazus C/o M. Haw. Clerk 6th A. P. Battalion Silchar who to found loitering in Silchar Town in a very suspicious manner. On questioning he has no (sic) any ostensible means of substances (sic) of livelihood and he could not give satisfactory account of himself. He himself said that he has been convicted as a deserter from Assam Rifles and he has been released from Silchar Jail in the month of January last 1970.

I therefore pray that he may be remanded to jail custody till 14-9-70 (sic) to complete the enquiry.

Name of accd.

1. Zakimlova s/o L. Dawna.

village - Sesawng P.S. Aijal

Mizo District.

Yours Faithfully,

Sd.

O/c Silchar P.S.

30-9-70.

On receipt of this report, the learned Magistrate passed the following order on 1-10-70:

Accd. Zakimolva is produced before me under arrest by the Silchar Police for an offence Under Section 54 Cr. P. C. to prosecute under the cognizable offence. He is remanded to hajot till 15-10-70.

Then there are series of remand orders by the Magistrate without any more information from the police as to the allegations for which the accused was detained or was sought to be detained. The last order in the ordersheet is dated 28-6-71, which is as follows:

Accd. is produced today from jail custody. He is further remanded to hajat till 12-7-71.

It appears that apart from the report, which we have quoted above, no other report whatsoever was sent by the police to the Magistrate. That being the position, we have got to examine whether this detention of the petitioner in jail under successive remand orders from the Magistrate is at all legal.

2. The material portion of Section 54 of the Code of Criminal Procedure which is called in aid by the learned Public prosecutor and under which the report was submitted, may be read:

54. (I) Any police officer may, without an order from a Magistrate and without a warrant arrest- First, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

* * * *

Before the first part of section 54 (I) of the Code of Criminal Procedure is invoked, it is necessary that the accused must be concerned in a cognizable offence or there must be a reasonable complaint made against him that he has committed a cognizable offence or there must be some credible information with regard to his committing such offence, and lastly, at least a reasonable suspicion must exist of his being concerned in a cognizable offence. All that the report states is that petitioner is arrested under Section 54 Criminal Procedure Code with a view to take up a cognizable case. This report does not show that the petitioner was concerned in any cognizable offence, or that any information had been received in the police station of his committing any cognizable offence or that there is any reasonable suspicion about his committing such offence. That being the portion, the prayer of the police under Section 54 Criminal Procedure Code is not in conformity with the provisions of that section. Even if it may be accepted that on. 30-9-70 the police was only arresting him on suspicion, the police could have produced some materials before the Magistrate or some information which was recorded in the Thana against him under Section 154 Criminal Procedure Code from which it could be said that a reasonable suspicion existed that he has committed the offence. This is not a case where the accused was arrested in the course of investigation under Chapter XIV of the Code of Criminal Procedure. No first information report has been registered against the accused. He has been only detained because the police officer thought that he would arrest the accused contemplating to take up a cognizable case against him. It is difficult to understand how in the absence of a complaint against the accused the criminal proceeding against him is being continued for such a length of time by merely registering the case as Silchar P. S. case under Section 54. Criminal Procedure Code as given by the police. It is said, the learned Magistrate was passing successive remand orders under Section 167 Criminal. Procedure Code. That Section may be read:

167. (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well founded the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest. Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (21 The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole...

* * * *

Section 167 occurs in Chapter XIV of the Code in a group of sections opening with section 154 under which information with regard to a cognizable offence has to be reduced to writing at the police station when the same is received there. Investigation under Chapter XIV starts from this stage and then only the procedure thereafter has to be followed. There is therefore no warrant in this case to invoke Section 167 on all the dates over a year when requests were made by the police for remanding the accused. This will be so even though we may be inclined, in a given case, to accept the position that an initial order of remand may perhaps be justified to enable the police to make an appropriate prayer to the court in accordance with law. This is, therefore, a detention of an accused against the provisions of law. The Criminal Procedure Code does not warrant such detention and the state when given due notice has not been able to show to us any valid reason for detention of the accused for such a long time spreading over a year. At first we issued Rule for a writ of habeas corpus. The learned public prosecutor, who appeared produced the original records before us, on a perusal of which we thought that we should also register this case under our revisional jurisdiction and hear the matter in full after notice to the State. We are glad that the learned public prosecutor has appeared and fairly pointed out all the facts in the record. He however submits that we should not interfere with the detention in this case as it will be tantamount to our interference with the investigation of the police under Chapter XIV. In support of this submission he draws our attention to a decision C.E the Supreme Court in the case of State of West Bengal v. S.N. Basak reported in : [1963]2SCR52 , wherein the Supreme Court has held relying on an earlier decision of the Privy Council that the functions of the judiciary and the police are complementary and not overlapping and that the courts should not interfere with the investigation of the police. That was a case where on a complaint by a Sub-Inspector of police, the officer-in-charge of the police station registered a case for conspiracy and cheating the Government of a substantial sum of money. It was a case, therefore, where investigation started on registration of a case against the accused under Section 154 of the Code of Criminal Procedure and the Supreme Court in view of the facts of that case made the observation to which our attention has been drawn by the learned Public Prosecutor. The facts of the present case are entirely different. The learned Public Prosecutor was unable to lay his hands on any paper to show that any cognizable offence was complained of against the accused or that even now there is any credible information or credible material from which it can be said that the accused has even been suspected to have committed any cognizable offence. We are, therefore satisfied that the detention of the Petitioner in this case is illegal and we hold it to be so.

3. In the result, the proceedings before the Magistrate in what is described as Silchar P. S. Case under Section 54 Criminal Procedure Code are quashed and the accused petitioner is set at liberty. We have passed these orders both under the habeas corpus jurisdiction as well as under the revisional jurisdiction. The application is accordingly allowed.


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