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Gandharba Rath Vs. Aparti Samal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 8 of 1959
Judge
Reported inAIR1960Ori33; 1960CriLJ381
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 54 and 56; Indian Penal Code (IPC) - Sections 166 and 342
AppellantGandharba Rath
RespondentAparti Samal
Advocates:H. Kanongo, Adv.
DispositionAppeal dismissed
Cases ReferredState v. Ram Chandra
Excerpt:
.....was clearly empowered under the 1st clause of section 54 without any order or warrant to arrest the complainant and the others as aforesaid on the information before him and accordingly he held that the said arrest by the accused assistant sub-inspector was not illegal. the petition of complaint in that case was not before this high court nor was there any materialon record to show that a reasonable complaint had been made against the accused in order to enable the police officer in question to exercise his powes under section 54. ultimately this high court came to the conclusion that the prosecution had failed to prove that there was an arrest either under section 54 or section 56 of the code. it was in that context that the rangoon high court was of opinion that section 56 amplied..........in the thana lock-up as alleged. there were eight witnesses for the prosecution including the police officer (p.w. 8), the sarpanch (p.w. 5) and bench clerk (p.w, 7) and the other witnesses being p.ws. 1, 2, 3, 4 and 6 cultivators of the locality. for the defence a police constable (d.w. 1), was called. the learned magistrate disbelieved the defence case on facts; but on interpretation of sections 56 and 54 of the criminal procedure code, acquitted the accused respondent.4. the main point for consideration in this appeal is whether the arrest and the confinement thereafter of the complainant and two others by the accused assistant sub-inspector was legal or illegal. mr. h. kanongo, learned counsel appearing for the complainant appellant in support of the prosecution case--that both.....
Judgment:

S. Barman, J.

1. The complainant is the appellant in this criminal appeal from an order of acquittal of the accused respondent passed by the learned Magistrate, First Class, Banki in Case No, 17C-1/91T of 1957.

2. The accused respondent was an Assistant Sub-Inspector of Police who was charged for disobeying the law with intent to cause injury under Section 166 of the Indian Penal Code and also for alleged wrongful confinement of persons including the complainant punishable under Section 342, Indian Penal Code. The learned Magistrate found the accused not guilty under either of the said sections and acquitted him. Hence this appeal.

3. The relevant facts, shortly stated, are these : On 20-12-1956, a First Information Report was lodged at Banki Police Station within the district of Cuttack by a local Daffadar of village Gayalbank against the complainant for alleged offence of wrongful restraint with assault etc. The Assistant Sub-Inspector of Police being the accused appellant herein is alleged to have been deputed by the Officer-in-charge of die Police Station for making investigation in village Gayalbank. The Assistant Sub-Inspector with one constable (D.W. 1) went to the village. He arrested the complainant (P.W. 1) and two others.

Though all the offences were bailable offences and though the complainant offered bail, the Assistant Sub-Inspector is alleged to have refused to release the complainant on bail. The other two persons who were arrested also offered bail and they were also refused bail. It is said that even cash security was offered but was not accepted. Instead, the accused Assistant Sub-Inspector hand-cutted the complainant and the said two other persons, and took them round the village for the purpose of being put to humiliation and harassment as alleged,

On 5-3-1957 the complainant filed a complaint petition against the accused Assistant Sub-Inspector on the allegations made in the said petition praying that the accused Assistant Sub-Inspector be summoned to take his trial for offences under Section 166 and Section 342, Indian Penal Code as aforesaid. The matter in due course came up for trial before the learned First Class Magistrate, Banki. The defences taken by the accused Assistant Sub-Inspector were these: The complainant and the said two persons who were arrested refused to go on bail. The accused Assistant Sub-Inspector did not hand-cuff or put a rope on the person of the complainant and the said two other persons as alleged.

The Assistant Sub-Inspector denied that he confined either the complainant or any of the said two other persons in the Thana lock-up as alleged. There were eight witnesses for the prosecution including the Police Officer (P.W. 8), the Sarpanch (P.W. 5) and Bench Clerk (P.W, 7) and the other witnesses being P.Ws. 1, 2, 3, 4 and 6 cultivators of the locality. For the defence a police constable (D.W. 1), was called. The learned Magistrate disbelieved the defence case on facts; but on interpretation of Sections 56 and 54 of the Criminal Procedure Code, acquitted the accused respondent.

4. The main point for consideration in this appeal is whether the arrest and the confinement thereafter of the complainant and two others by the accused Assistant Sub-Inspector was legal or illegal. Mr. H. Kanongo, learned counsel appearing for the complainant appellant in support of the prosecution case--that both the arrest and the confinement were illegal,--relied on the provisions of Section 496, Criminal Procedure Code making it mandatory to release a person on bail when he, other than a person accused of a non-bailable offence, is arrested or detained without warrant, and is prepared, at any time while in the custody of the Police, to give bail.

Besides, the learned counsel also relied on the circumstance that the accused Assistant Sub-Inspector having been deputed by the Officer-in-charge to investigate the case on the First Information Report lodged at the Police station on 20-12-3.956, his powers were strictly within the ambit of Section 56 of the Criminal Procedure Code. Section 56 makes it mandatory that when a Police Officer deputes a subordinate to arrest without warrant, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

Besides, the officer so required, as the accused Assistant Sub-Inspector in the present case, shall before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such persons, shall show him the order. The learned counsel contended that the accused Assistant Sub-Inspector acted illegally in making to arrest and keeping the arrested person in wrongful confinement without being equipped with such an order in writing from his superior Police Officer who deputed him for the purpose. In other words, the accused Assistant Sub-Inspector is alleged to have acted in excess of his powers with the result that the arrest and confinement were wrongful and illegal.

In this context the learned counsel drew my attention to the scheme of the relevant provisions of the Criminal Procedure Code contained in Chapter XIV of the Code relating to 'Information to the Police and their powers to investigate.' Chapter XIV covers Sections 154 to 176 both inclusive, making wide provisions as to information, investigation, both in cases of cognizable and non-cognizable cases, procedure in respect thereof, power to hold investigation, examination of witnesses by the Police, search by Police Officer and all other matters in connection therewith as provided in the said Chapter.

The first stage leading to investigation by the Police is the lodging of the First Information Report with the Police as provided in Sections 154 and 155 of the Code,--Section 154 relating to information in cognizable cases, Section 155 relating to non-cognizable cases, and the next stage is the stage of investigation. Section 156 provides for investigation in cognizable cases. Section 157 provides for the procedure where a cognizable offence is suspected.

Under this Section 157 if, from information received, the officer-in-charge of a Police Station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall take either of the two steps, namely, that he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or alternatively the Police Officer shall depute one of his subordinate officers to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.

It was under Section 157 that the Officer-in-charge presumably is stated to have deputed the accused Assistant Sub-Inspector to investigate. In so deputing the Officer-in-charge should have, according to the complainant's case, strictly complied with the procedure laid down in Section 56, which enjoins, upon the Officer-in-charge to deliver to the Subordinate Officer so deputed an order in writing and specifying to him the substance of the order; and if so required the subordinate Officer would show-the order to the person to be arrested.

The Station Diary Entry No. 311 in the Station Diary Book (Ext. E) shows that the A. S. I. (Assistant Sub-Inspector) with C/533 R. S. Patnaik left P. S. for preliminary investigation of the case at Gayalbank. There is no indication that any order in writing was given to the accused Assistant Sub-inspector; nor is there anything to show that the offence, for which any person was to be arrested, was mentioned to the accused Assistant Sub-Inspector; nor does it show that the accused Assistant Sub-Inspector was directed to arrest any person Undoubtedly, if the matter is allowed to rest there, the Assistant Sub-Inspector has no protection under Section 56.

But it appears that there is another provision in the Criminal Procedure Code which gives police officers powers, to make arrest without warrant. Section 54 of the Criminal Procedure Code provides that any police officer may, without an order from a Magistrate and without a warrant, arrest 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.

The learned Magistrate relying on this Section 54 took the view that the object of Section 54 is to give widest powers to the Police in cognizable cases andthe only limitation is the necessary requirement of reasonability and credibility to prevent the misuse of these powers and that the accused Assistant Sub-Inspector in the present case was clearly empowered under the 1st clause of Section 54 without any order or warrant to arrest the complainant and the others as aforesaid on the information before him and accordingly he held that the said arrest by the accused Assistant Sub-Inspector was not illegal. Mr. H. Kanungo contended that Section 54 only gives power to a police officer to arrest while acting on his own initiative having information that a particular person is concerned in a cognizable offence; but according to the learned counsel, the officer certainly cannot seek protection under Section 54 when he has been deputed by the officer-in-charge under Section 56 of the Code.

In other words, his contention is that by reason of the special deputation under Section 157, the powers of the subordinate police officer,--the Assistant Sub-Inspector in the present case -- are strictly within the ambit of Section 56 of the Code and not beyond that. He certainly, according to the learned counsel, cannot invoke the wider powers of arrest without warrant under Section 54. This argument, made on behalf of the complainant, is untenable in law. The special powers under Section 56 of the Criminal Procedure Code cannot override the general powers of arrest without warrant in certain cases as provided in Section 54 of the Code.

Merely because the accused Assistant Sub-Inspector had been deputed under Section 56 to investigate the case does not take away from him his powers of arrest in his discretion under Section 54 of the Code if the exigencies of the situation so require. To take a contrary view is likely to make the object of Section 54 nugatory. When a police officer is deputed to investigate a case, his dual powers under Sections 56 and 54 arc maintained.

5. Mr. H. Kanongo in support of his contention relied on an unreported decision of this Court, State v. Indra Padhan, Government Appeal No. 7 of 1958, D/- 5-3-1959 : (AIR 1960 Orissa 23), where, while discussing the difference between Section 54 and Section 56 of the Criminal Procedure Code this High Court held that the reason for prescribing the procedure under Section 56 appears to be to pin both the superior and the subordinate officers down to their respective responsibilities where the former does not choose to act for himself but through the latter.

But there may, however, be a class of cases where, besides being armed with an order contemplated by Section 56, a police officer may also be possessed of the requisite information or requisition under Section 54, in which case his act will be supportable if it could assume legality under either section. With great respect, I fully agree with this interpretation as to the reason for the prescribed procedure under Section 56.

In the said unreported decision, this High Court, by reference to a decision of the Patna High Court in Jioo Mian v. Emperor, AIR 1938 Pat 229, where it was held that the issue of a written order under Section 56 does not limit the power conferred by Section 54,--held that while accepting the said Patna decision to be the correct position in law, in that particular case before this High Court, there was nothing on record to show that a cognizable offence had been committed by the accused in that particular case or any reasonable complaint had been made against him except the fact that the officer-in-charge concerned in that particular case, had stated that he had registered certain cases in his diary at the Police Station.

The petition of complaint in that case was not before this High Court nor was there any materialon record to show that a reasonable complaint had been made against the accused in order to enable the Police Officer in question to exercise his powes under Section 54. Ultimately this High Court came to the conclusion that the prosecution had failed to prove that there was an arrest either under Section 54 or Section 56 of the Code. In the result the order of acquittal of a charge under Section 224, Indian Penal Code passed by the learned Magistrate was upheld.

I cannot see how this decision supports the contention of the learned counsel for the complaint in this case. Mr. H. Kanongo also cited before me certain other decisions in support of his contention. In Mohammad Ismail v. Emperor, AIR 1936 Rang 119, the facts were these: The appellant N was sentenced to six months' rigorous imprisonment under Section 353, Indian Penal Code for assaulting a police constable when the latter was trying to arrest, him as he was wanted on a report of theft under Section 380 Indian Penal Code. The investigating Sub-Inspector of Police had given verbal orders only to the arresting constable and had not given him an order in writing, specifying the person to be arrested and the offence for which the arrest was to be made, as required under Section 56, Criminal Procedure Code.

The honorary Magistrates, who tried the case were of the opinion that the arrest was in order under the provisions of Section 54 (1), Criminal Procedure Code. It is in this back-ground that the Rangoon High Court in appeal held that Section 54 docs not give an unqualified power in all cases to any police officer to arrest,--without an authorisation in writing,--a person concerned in a cognizable offence, and that the provisions of Section 54 are limited by those of Section 56

Hence a police constable who is merely deputed by his superior officer to arrest some one concernedin a cognizable offence and, not acting independently cannot arrest without complying with the formalities mentioned in Section 56. It is quite clear fro the judgment that the Rangoon High Court had in viewthe position that any officer to whom information ofa cognizable offence had been given or in whose view such an offence had been committed or whohas reasonable ground to suspect a person or such an offence can effect an arrest without a warrant from a Magistrate or any other authorisation fromsuperior officer, provided that the officer is acting on his own initiative, or independently in the course of his duty.

A beat constable can do so and constantly does so. The main reason and justification for such a poweris necessary. It may also be said that in such casesthe person arrested is likely to know the reason for his arrest, and that the person who arrests him is a police officer. But where a subordinate police officer is not acting independently, but is merely deputed by a superior officer to arrest some one concerned in a cognizable offence, a further formality is prescribed,presumably to prevent abuse of the powers of the Police, or to allow the person arrested to know the reason for his arrest and the office of the person arresting him.

Furthermore, in the Rangoon case it was not alleged that any information had been received by the Police Constable or that he was acting in the case In any other capacity than under the orders of the investigating officer to arrest the accused if he found him. It was in that context that the Rangoon High Court was of opinion that Section 56 amplied and that the arrest was not justified under the provisions of Section 56. There are, indeed, these clearly distinguishing features which make the Rangoon case not applicable to the facts and circumstances of the present case.

Besides, in the present case the entry in the Station Diary Book Ext. E that 'A. S. I. with C/523E. S. Patnaik left P. S. for preliminary investigation of case No. 57/56 at the Gayalbank,' shows that the A. S. I. had left for preliminary investigation cf the case. There is nothing on record or any circumstance to show that the accused Assistant Sub-Inspector was not to take any action, in course of the investigation of the case on his own initiative, independently of any directives from his superior officer. In the present case, the Officer-in-charge P.W. 8 did not give any instructions to the accused Assistant Sub-Inspector as to how to effect the arrest, if it was found necessary because the officer-in-charge thought that the Assistant Sub-Inspector would act according to his discretion.

Accordingly the accused Assistant Sub-Inspector of Police in his discretion examined the informant Daffadar, some witnesses, the complainant and two officers before arresting them. The arrest made by the accused Assistant Sub-Inspector is protected by virtue of Section 54. In the Rangoon case the deputed constable made the illegal arrest without the written order from the superior police officer who had deputed him for the purpose as required under Section 56. The constable was given no discretion in the matter of arrest.

In King v. Sridhar, AIR 1941 Rang 180, the same view was expressed by the Rangoon High Court in connection with an incident which arose out of a strike in an Oil Company Works. A First Information Report was made at the local police station alleging that a haystack had been burnt the night before. The Subdivisional Police Officer gave orders by word of mouth to a local Sub-Inspector to arrest one F in connection with the haystack burning. In accordance with the verbal orders, the Sub-Inspector proceeded to arrest F for the offence of causing mischief by fire punishable under Section 436, Indian Penal Code. Ultimately the Sub-Inspector so deputed and other police officer went to a meeting of the strikers and arrested F.

The question was whether F, arrested as he was by the Sub-Inspector, was lawfully detained. The learned Magistrate who tried the accused persons charged for attempting to rescue F convicted them all under Section 225, Indian Penal Code. On appeal, the learned Sessions Judge held that F was not lawfully detained and he acquitted all the appellants and set aside their conviction and sentence under Section 225, Indian Penal Code. The matter came up in appeal to the High Court who upheld the learned Sessions Judge's judgment of acquittal.

The whole ratio decidendi of the Rangoon High Court decision was that there was not the slightest suggestion that the Sub-Inspector acted in any way on his own initiative or that he had any information or suspicion apart from what his superior officer told him. If the deputed police officer is doing that on his own initiative he may then act under Section 54, Criminal Procedure Code but if he is not acting on his own initiative or independently, then, he is merely doing what his superior police officer tells him to do, then an order in writing must be delivered to him under Section 56.

In the said decision the Rangoon High Court referred to an earlier decision of the Patna High Court in Kishun Mander v. Emperor, AIR 1926 Pat 424, where it was observed that the Police Constable who was deputed by the Sub-Inspector went along with the complainant from whom the constable, acting independently, obtained credible information which entitled him to act under Section 54. In the present case also before me, the Assistant Sub-Inspector examined the informant Daffadar, the complainant and two others before arresting them.

The Allahabad High Court in State v. Ram Chandra, (S) AIR 1955 All 438, held that where apolice officer deputes his subordinate to effect an arrest of an accused without a warrant, then under Section 56 he has to deliver to the officer required to make the arrest an order in writing. And therefore, for want of such written order, the arrest of the accused by such an officer is illegal and further that the essential difference between Section 54 and Section 56 is that while the former lays down in what cases a police officer may arrest a person without warrant, the latter prescribes the procedure to be followed in these cases when instead of making the arrest himself, the officer,--provided he is an officer-in-charge of a police station or police officer making an investigation under Chapter XIV of the Code,--deputes an officer subordinate to him to do so.

Thus in the matter of making an arrest without warrant a police officer may in one case derive his authority under the one but not the other of the two sections while in another case he may derive it under both the sections, depending upon the circumstances of such case. If he acts on his own initiative and not in execution of an order from one of the officers mentioned in Section 56, he acts within the four corners of Section 54 and the legality or otherwise of his action must be judged in accordance with the provisions of that section and that section alone.

If, on the other hand, he acts in execution of an order of the said nature without being possessed of requisite information or requisition to enable him to act on his own under Section 54, he can act only legally if he complies with the provisions of Section 56. There may however be a class of cases where, besides being armed with an order contemplated by Section 56, a police officer may also be possessed of requisite information or requisition under Section 54 in which case his act will be supportable if it could assume legality under either section.

Thus it appears that the officer can have such dual authority both under Section 54 and Section 56. The Allahabad High Court discussed this aspect at great length and reiterates the principles on which the application of Section 54 and Section 56 is to be invoked in particular circumstances of each case. In the present case, as I have already stated, the Station Diary entry (Ext. E), does not show that the officer-in-charge had deputed the accused Assistant Sub-Inspector to either investigate or to arrest any particular person. All that the entry in the Station Diary shows is that the accused Assistant Sub-Inspector with a Constable left the Police Station for preliminary investigation of the case at Gayalbank.

This, on the face of it, shows that the accused Assistant Sub-Inspector had been given the direction to act on his own initiative and he could freely act and arrest, if necessary, as the exigencies of the situation might require. The entry in the Station, Diary does not show that the officer-in-charge had deputed the accused Assistant Sub-Inspector for the purpose of arresting a particular person. Therefore, there is no question of his being clothed with an order in writing as required under Section 56 of the Criminal Procedure Code.

6. In this view of the matter I uphold the decision of the learned Magistrate. I must make it clear however, that the alleged conduct of the accused Assistant Sub-Inspector should be enquired into departmentally as suggested by the learned Magistrate in the concluding portion of his judgment. Police officers must not abuse their powers which by law are given them in trust for public good. A delinquent officer should be properly dealt with by the department concerned for any alleged dereliction of duty on his part, if any, which may not come strictly within the provisions of the Penal Code. There is some such thing as moral code for the police which they are expected to follow.

7. The result, therefore, is that the order of acquittal of the accused Assistant Sub-Inspector is upheld.

8. This appeal is accordingly dismissed.


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