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Ajit Kumar Sannah Vs. the State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantAjit Kumar Sannah
RespondentThe State of Assam and ors.
Excerpt:
- .....and prays that he should be freed from that bond.4. section 50 of the code reads as follows:person arrested to be informed of grounds of arrest and of right to bail.(1) every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.(2) where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.in this case the relevant portion of section 41 criminal p. c. may also be referred to:section 41 'when police may arrest without warrant.-(1) any police officer may, without.....
Judgment:

Baharul Islam, J.

1. This is an application under Section 482 of the Code of Criminal Procedure, 1973. The material facts briefly are these: The petitioner is the Ex-president of the Assam College Teachers' Association, President of the Assam Political Science Association and is the Professor and Head of the Department of Political Science of the Handique Girls' College, Gauhati, He is also a prominent member of the Socialist Party, Assam.

2. There was some sort of turmoil with regard to the holding of the Pre-University Examinations of the Gauhati and the Dibrugarh Universities in June, 1975, and in that connection, it is stated by the petitioner, on the morning of 11-6-1975 the police indiscriminately arrested hundreds of students. The Principal of the Arya Vidya Pith College, Gauhati, lodged a first information report on 12-6-1975 at 6-30 p. m. at Bharalumukh Police Out Post that 'some miscreants entered into the campus and assaulted Vice-Principal of the College, Sri B. Bhuyan, and D. Barman, Lecturer in the Department of Mathematics of the College, two bearers, and one student of the College', and requested for necessary action. On that day at about 11 P. M. while the petitioner was relaxing at his house after his meal, the Officer-in-charge of the Gauhati Police Station (respondent No. 8) accompanied by some police constables came to his house and requested him to accompany them to the Thana on the plea that he was sent for by the Superintendent of Police, Kamnip. The petitioner refused to comply with the request on the ground that at that hour of the night he was not willing to go to the Thana, and wanted to know of the police officers if he was under order of arrest and they came to arrest him; and the petitioner demanded the warrant of arrest, if any. The Police officers informed him that there was no warrant of arrest against him and they had not come to arrest him either.

Even after that when he refused to comply with the request, the police officers forcibly took him out of his house to a police vehicle parked nearby and then to the Thana. At the Thana he found the Superintendent of Police talking with a gentleman in one room and when the petitioner entered the room, the Superintendent of police requested the petitioner to sit in a nearby room. Accordingly, he was sitting in that room, but the Superintendent of Police left the Thana. After some time the Police Officers left their posts. Thereafter he was requested by some constables to go to another room and no action was taken with regard to him. He was in great predicament and had to pass the night sitting till next morning. On the following day in the morning he was visited by some friends and at about 1 P. M. the petitioner was brought to the Prosecuting Inspector's office at the Deputy Commissioner's Court at Gauhati where he was kept confined till 5 P. M. He came to know then that a criminal case was instituted against him. He was then sent to hazat. He made an application for bail on 13-6-1976, and, ultimately he was allowed to go on bail by the Chief Judicial Magistrate, Gauhati, on 18-6-1975 on execution of a P. R. bond for Rs. 1,000.00.

3. The petitioner appearing in person, first submits that his detention was in violation of Section 50 of the Code of Criminal Procedure, 1973, and consequently the P. R. bond that he had to execute was also a nullity and prays that he should be freed from that bond.

4. Section 50 of the Code reads as follows:

Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

In this case the relevant portion of Section 41 Criminal P. C. may also be referred to:

Section 41 'When police may arrest without warrant.-

(1) Any police officer may, without an order from a magistrate and without a warrant, arrest any person-

(a) 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; or...

5. The petitioner has not denied that the police officer has the power to arrest an accused if he is suspected of a cognizable offence. But his submission is that in that case the accused is entitled to the communication of full particulars of the offence under Section 50 and in this case this has not been done. The petitioner has specifically stated in his petition supported by an affidavit that communication of particulars of the offence has not been made to him till now in spite of the orders of the chief Judicial Magistrate to do so. This has not been countered either by the State of Assam (respondent No. 1), or the officer-in-charge of the Thana (respondent No. 3), by any affidavit.

6. Sri. C. R. De, the learned Counsel appearing on behalf of the State submits that the police diary in his possession shows that the particulars of the offence were communicated to the petitioner orally. We are unable to peruse the police diary in the face of the affidavit filed by the petitioner. There was no reason as to why respondent No. 3 did not come forward to file a counter affidavit denying the petitioner's allegation. The provision of Section 50 is mandatory and must be strictly complied with. A citizen's liberty cannot be curtailed except in accordance with law. Even if any communication about the offence was orally made by respondent No. 3 to the petitioner, we do not know what kind of communication was made, whether the communication of the full particulars or the mere section of the offence was told to the petitioner. In the circumstances, we hold that the arrest and detention of the petitioner by respondent No. 3 was in violation of Section 50 Cr. P.C. They are illegal, and, consequently, the P. R. bond that had to be executed by the petitioner was also a nullity.

7. In the result we cancel the P. R. bond executed by the petitioner and he is freed from it.

8. There was also a prayer by the petitioner for quashing the case. But this is not the stage at which the case can be quashed. It is possible that if there be no evidence against the petitioner, the case may and in a final report, or if there be a charge-sheet unwarranted by materials, the petitioner can approach an appropriate court at the appropriate time for quashing the case. Accordingly, we partly allow this petition as indicated above. The police may, however, arrest him under Section 41(1) if there be a cognizable offence against him only in accordance with law.

D. Pathak, J.

9. I agree.


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