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A.K. Gopalan Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberO.P. No. 3410 of 1961
Judge
Reported inAIR1962Ker215
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 54, 151, 167, 167(2), 344, 491 and 497; Constitution of India - Article 226
AppellantA.K. Gopalan
RespondentState of Kerala and ors.
Appellant Advocate P. Subramanian Potti,; S. Easwara Iyer,; V.R. Krishna Iy
Respondent Advocate Adv. General and; V. Narayana Menon, Public Prosecutor
DispositionPetition dismissed
Cases ReferredEmperor v. Nazir Ahmad
Excerpt:
.....instances evidencing the want of good faith that characterised the conduct of the police. if the police officer had failed to act with undue haste and was watching the situation certainly such action cannot be characterised as in bad faith. similarly nothing turns on the addition of (he new sections so long as the basic facts necessary to constitute the offences were set out in detail with as much precision ns possible at that stage, io the original remand report itself and the circumstance that a wrong label was put upon it or the section of the offence .was misquoted doesnot indicate want of good faith. that does not in any way show want of good faith. 23. in this case the additional district magistrate before whom the petitioner was produced satisfied himself and ordered that the..........that arrest was illegal and without jurisdiction section 151, criminal procedure code authorises a police officer who gets knowledge of a design to commit any cognizable offence to arrest without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. the facts set out in detail in the reply affidavit filed by the circle inspector and incorporated in the remand report itself clearly indicates that he had the necessary knowledge and that it appeared to him that the commission, of the offence cannot be prevented otherwise thanby the arrest of the petitioner and the others. it is the subjective satisfaction of the officer concerned that- is envisaged in the section and it is not.....
Judgment:

Anna Chandy, J.

1. This is a petition for the is sue of a writ of habeas corpus. The petitioner Shri A. K. .Gopalan, is a sitting member of the Parliament and the president of the Indian Kisan Sabha. He wasarrested by the Circle Inspector of Police, Ernakulam, on the 10th of this month at Tripunithura under Section 151, Criminal procedure Code, The circumstances which led .up to the arrest as disclosed in the reply affidavit filed by the Circle Inspector, the remand report and the other records produced before court are as follows: The Circle inspector had information that the petitioner and the ten others who were arrested along with him were organising a mass of volunteers under the auspices of the Kerala Karshaka Sangh and were instigating and, inciting them to form themselves into unlawful assemblies and to cause obstruction-to public servants in the discharge of their official duties by forcibly blocking all entrances to Government Offices.

On the morning of the 10th the Circle Inspector received definite information that the petitioner and the ten others arrested were proceeding towards Tripunithura with the intention of committing the abovementioned offences with a view to paralising the working of ' Government Offices. The commission of the said offences in the opinion of the Circle Inspector would have entailed a serious breach of peace and public order. It is further stated that the Circle Inspector, on a careful consideration of the information, that he had received, was satisfied that the commission of the abovementioned cognizable offencesby the petitioner and others could not be prevented otherwise than by having them arrested-

2. The petitioner and his companions were arrested at about 9-40 A. M. on 10-12-1961- They were produced before the Additional District Magistrate, Ernakulam by 3 P. ,M. the same day with a report praying for their remand for a period of fifteen days to enable the officer to complete the investigation and submit a final report. The court remanded them to custody for a period of ten days, that is, till the 20th, The day after the arrest the Circle Inspector filed a report to the Judicial District Magistrate, Erna-kulam (marked Ext. R-2) that during the investigation conducted by him in the above case it was revealed that the accused had committed an offence under Section 31 of the Travancore-Cochin Public Safety Measures Act (Act V of .1950) and that the report of the above has been submitted to the Additional District Magistrate, Ernakulam with a request to forward the records of the case to the Court of the Judicial District Magistrate. He therefore prayed that the Court may be pleased to obtain the above records for purposes of trial.

3. This habeas corpus petition was filed on 13-12-1961 on the ground that the petitioner's arrest by the police and subsequent detention by the Magistrate were illegal and without jurisdiction and were prompted by ulterior motives.

4. After hearing preliminary arguments this Court is sued a rule calling upon the respondents to appear on the 19th to show cause why the order prayed for should not be made and at the same time to produce in Court the petitioner. The petitioner was produced and affidavits were filed detailing the facts which led to the arrest and detention. The petition was heard in part on the19th and on the 20th, when the case was taken up it was represented that as the remand period has expired and the investigation was completed a charge-sheet was filed before the District Magistrate, Ernakulajn charging the petitioners under Section 31. of the Travaocore-Cochin Public Safety Measures Act read .with Section 2 Clause 17 L and O thereof and Section, 116 of the Indian Penal Code read with Sections 143, 341 and 353. Copy of the charge-sheet and the order passed by the Magistrate thereon .were filed along with the affidavit by the Circle Inspector. The respondent was supplied with copies of these records. It is seen that the Magistrate has taken the case on his file and remanded the accused to the Sub Jail, Alwaye to be produced before him on 27-12-1961 to which date the case was posted for preliminary hearing.

5. Now, it cannot be disputed that if the order of detention passed by the Magistrate on 20-12-1961 is a valid one this Court cannot order the release of the petitioner in these proceedings. The position is well-settled, by the decision of the Federal Court in Basanta Chandra v. Emperor, AIR 1945 FC 18. In that decision Spens, C. J observed:

'The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of th proceedings cannot be invoked in habeas corpus proceedings. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention,. The Question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner'.

This was followed by Wanchoo, J. in Indu Bhushan v. pistrict Magistrate, Allahabad, AIR 1949 All 82, To the same etfect is the decision in Prahalad panda v. Province of Orissa, AIR 1950 Orissa 107.

6. The question for consideration then is as regards the validity of the order of the District Magistrate. The learned counsel characterises the order as the culmination of a proceeding every is stop of which is vitiated by illegality and mala fides. Though this aspect of the case was argued out at great length we must say that we remain far from convinced that police acted with any base motives much less with illegality.

7. It cannot be said that arrest was illegal and without jurisdiction Section 151, Criminal Procedure Code authorises a police officer who gets knowledge of a design to commit any cognizable offence to arrest without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. The facts set out in detail in the reply affidavit filed by the Circle Inspector and incorporated in the remand report itself clearly indicates that he had the necessary knowledge and that it appeared to him that the commission, of the offence cannot be prevented otherwise thanby the arrest of the petitioner and the others. It is the subjective satisfaction of the officer concerned that- is envisaged in the section and it is not for this court in, these proceedings to go into the question whether the officer was indeed justified in coming to his conclusions. This question was considered in some detail by the Madras High Court in In re Om Prakashp. Gupta -- AIR (1949 Mad 744 from which the following observations may be incorporated with benefit : -

'Section 151 authorises a police officer to arrest if he had knowledge that the person sought to be arrested entertained a design to commit a cognizable offence. It must also further appear to the police officer that the commission of the offence could not be otherwise prevented. Both the 'knowledge' and the 'appearance' are those of the police officers concerned and, are not capable of an independent investigation. It is not open to the High Court exercising its jurisdiction under Section 491 to go into the question whether, in fact,, the police officer was justified in concluding that the person sought to be arrested was about to commit a cognizable offence and whether the police officer was equally justified in concluding that there were no other means by which the perpetration of the offence could have been prevented. The discretion is vested solely in the police officer and that discretion cannot be questioned or canvassed in a proceeding under Section 491. The object of the section is to prevent the commission of an offence which a person designs or intends to commit., The facts would not be capable of investigation in order to find out whether, in fact, a cognizable offence was intended to be committed or not, as the offence would still1 be at the stage of an intention and not passed into the region of facts. There would be nothing (therefore on the face of the record to show that the arrest was illegal 'or Improper .within the meaning of Section 6491 .(i), Clause (b)'.

This decision was followed by this Court in C'hakkappan v. State of Kerala I960 Ker LT 460: (AIR 1960 Kerala 297).

8. The next objection that is taken to the validity of the detention as that the petitioner was not informed of the grounds for his arrest, thereby pausing a violation of Article 22(1) of the Constitution. This objection also cannot stand. There is the definite averment in the reply affidavit filed by the Circle Inspector in paras 4 and' 10 where it is stated that on reaching the Tri-punithura Junction he arrested the petitioner, explained to him the provision of law under which the arrest was made as well as the grounds for it and the materials which he then bad to justify the arrest of the petitioner, There is no reason to doubt the correctness of the averment or for falling in with the suggestion that it is an afterthought in view cf the statement in the first remand report itself that the arrest was made after explaining the reason for it and the section under which it was effected.

9. Another point stressed by the learned counsel for the petitioner is that the first remand order was made without jurisdiction. The argument is that a remand order under Section 6167, Criminal:P. C. for the purpose of investigation cannot be made in the case of a person arrested under Sec. 151, Criminal Procedure Code, since there is no offence to be investigated, Even if there be anything in this contention, we do not think that it has any particular significance in this case since the facts narrated in the remand report itself leaves no room for doubt that the Circle inspector had definite information regarding the commission of cognizable offences.

It was then contended that the report does not indicate that the remand was required for the purpose of investigation into the cognizable offences but on the other hand the prayer for remand was confined, only to the offences which he Was intending to commit and for the prevention of which he was arrested under Section 151. No such inference is possible on a reading of the report. It contains the definite statement that the Circle Inspector had information about the commission of cognizable offences and that the remand was sought for, for the purpose of investigation into the offences. The Order of remand only shows that the renland was allowed as prayed for in the petition thereby indicating that it was for the purpose of investigation into the offences. That as a matter of fact investigationwas actually going on is seen from the report fied the very next day by the Circle Inspector wherein he states that his investigation has revealed that the petitioner had committed offencesunder Section 31 of the Public Safety Measures Act.

10. Yet another objection raised by the 'learned counsel involves the filing of the charge sheet on the 20th and the addition of offences under the Penal Code to that under Section 31 of the Public Safety Measures Act. it was pointed out that whereas in the second report of the Circle Inspector on 11-12-1961 the only offence mentioned was one under Section 31 of the Public Safety Measures Act in the final charge-sheet some offences under the Penal Code were also added. The contention is that the filing of the charge-sheet on the 20th and the additional offences mentioned were inspired by the arguments of the petitioner's counsel in 'this Court on the 19th regarding the constitutionality of Section 31 of the Travancore-Cochin Public Safety Measures Act and as such should be considered as instances evidencing the want of good faith that characterised the conduct of the police. We do not think there is any merit in these contentions.

If the police officer had failed to act with undue haste and was watching the situation certainly such action cannot be characterised as in bad faith. Filing of the charge on the 20th was evidently necessitated by the fact that the period of remand, was to expire n the 20th and the investigation must have been complete by that time. Similarly nothing turns on the addition of (he new sections so long as the basic facts necessary to constitute the offences were set out in detail with as much precision ns possible at that stage, io the original remand report itself and the circumstance that a wrong label was put upon it or the section of the offence .was misquoted doesnot indicate want of good faith. Even if it be, as suggested on behalf of the petitioner, that the police took the hint from the arguments of the defence counsel and added other sections, it may mean nothing more sinister than that they were alert enough' to be benefited by the arguments advanced by the defence counsel. That does not in any way show want of good faith.

11. As noted earlier the learned counsel for Ithe petitioner also challenged the vires of Section 31 of the Travancpre P.ublio Safety Measures Act. However we do not think that in view r the present order of the District Magistrate this aspect of the case calls for determination but ia this connection mention must be made of another ground of attack on the validity of the Magistrate's order. Tbe learned counsel argues tnat if it can be shown that the above section is unconstitutional then the mention of that section in the charge-sheet together with sections of the Penal Code must be held to have vitiated the ' remand order inasmuch as the order was passed on grounds some of which were valid arid some invalid. This contention is evidently based on the principle laid down by the Supreme Court in Dwarka Das v. State of J. and K-, (S) AIR ,1957 SC 164. It was held in that case that;

'Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to Specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bfld. That is so because the matter I>eing one for subjective satisfaction, it must Jae properly based on all the reasons on which it purports to be based. Jf some ut of them are found to be non-existent or irrelevant,, the Court cannot predicate what the subjective satisfaction of the safd authority would nave been on the exclusion of those grounds or reasons. TO uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the Statutory authority.'

The above case dealt with the provisions Of the Jajnmu and Kashmir Preventive Detention Act and with orders passed by statutory authorities; we do not think that the principle can be extended to cover orders passed by courts also. Here the order of detention was passed by a court and not by any executive authority. It is open to a court to consider a case in its entirety and to base its decision on grounds that are relevant and valid rejecting those that are irrelevant Or immaterial. Nor can it be argued in this case, that the petitioner was prejudiced, in that but for the mention of Section 31 of the Public Safety Measures Act the Court would not have passed the order of remand.

12. We therefore feel that the order of detenition is legal and was passed with jurisdiction. Now that the charge-sheet is filed and the petitioner remanded to custody, no relief can be ganted to him in a proceeding of this nature.

13. In the result the petition is dismissed. The rule is sued by this Court is discharged. We make no order as to Costs of this petition. GOVINDA MENON, J.:

14. J agree with the conclusion of ray learned brother, but in view of the import-grace of the question I shall add a few words of my own. I need not re-state the facts that led up to the arrest. In the affidavit of the police officer who effected the arrest he has given the reasons why the arrest had to be made. What is required under Section 151 of the Criminal Procedure Code is knowledge of a design or a plan for the commission of a cognizable offence and the satisfaction of the police officer concerned that such offence cannot be prevented except by the arrest of the person

15. As pointed out in the case in AIR 1949 Mad .744 the question whether the police officer had the requisite knowledge and whether the commission of the designed offence could have been prevented otherwise than by an immediate arrest are matters essentially within the discretion of the police officer and are not capable of an independent investigation and this court cannot substitute its own opinion as to whether the commission' of the offence could have been prevented by some means other than the arrest of the person or whether the arrest was in fact premature. The discretion is mainly with the police officer and unless there is clear evidence that it is a fraudulent exercise of the power vested in the officer, his discretion cannot be questioned in proceedings under Section 491 of the Criminal Procedure Code.

16. This view has been followed by this Court in the decision in 1960 Ker LT 460: (AIR 1960 Kerala 297).

17. All that I can say is that there is nothing on th'e face of the record to indicate that the arrest was wrongly made.

18. The next question is about the action of the Additional District Magistrate under Section 6167, Criminal Procedure Code. When . a person is arrested, without a warrant either under Section 54 or under Section 151. and the police officer is of opinion that there are grounds for believing or there is credible information against the person so arrested, which requires investigation by him, and that the investigation cannot be completed within twenty-four hours he shall forward the person so arrested to the nearest Magistrate. At that stage whether the investigation is necessary is for the police officer to decide.

19. It was pointed out, that there was no report of any cognisable offence received by the police officer which he had to investigate. A similar contention was raised in Emperor v. Nazir Ahmad, AIR 1945 PC 18 where their Lordships of the Privy Council stated:

'The receipt and recording of a first information report is not a condition precedent to the setting in motion of a criminal investigation. NO doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way, but there is no reason why the police, if in possessionthrough their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged.''

20. Section 157 of the Criminal Procedure Code authorises a police officer if he has reason io suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed to start investigation, police have thus under the code a statutory right to investigate, a cognisable offence without requiring the sanction of the court and it would be for the police officer to decide whether he has materials to start the investigation.

21. Their Lordships of the Privy Council dealing with interference by the courts observed:

'Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the. utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law. imposes upon them the duty of enquiry. in India there is a statutory right on the part of the police under Sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court under Section 561-A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with (SIC) observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the court to initervene in an appropriate case when moved under Section 491, .Criminal P. C., to give directions in the nature of habeas corpus.'

22. The police have a right to investigate and if in any case they require such investigation and find that the investigation cannot reasonably be completed within twenty-four hours prescribed, the accused has necessarily to be produced before the Magistrate for remand. It is then for the Magistrate to satisfy himself whether the request has to be granted. It is a judicial discretion and he shall give, his reason.

23. In this case the Additional District Magistrate before whom the petitioner was produced satisfied himself and ordered that the person be remanded to judicial custody and no materials whatsoever are there to justify our interference. The detention of the petitioner under the orders of the Magistrate is perfectly valid and legal I cannot accede to the proposition that the power under Sub-section (2) of Section 187 cannot apply to cases of persons who are arrested under Section 151,' Cr. P. C. The conditions required to attract the section are that there must he a per-son arrested and detained in custody and that it must appear to the police officer that he has toconduct an investigation and that the investigation against the arrested person cannot be completed within twenty-four hours. Whether the arrest was under Section 151 or under Section 54 is not relevant for the purpose of remanding the accused under Section 167.

24. Even assuming for the purpose of argument that the arrest and detention was not necessary at that stage if at any time before this court is called upon to exercise its jurisdiction under Section 491, Cri. P.. C., there is a valid order directing detention, it is well, settled that the court will not direct his release merely on the ground that at some prior stage it could be said that there was no valid cause for detention and there was no valid order. In habeas corpus proceedings Jhe court is to have regard to the legality or otherwise of the detention at the time the court has to decide whether the person has to the released or not.

25. In this case it is seen that the police have filed a charge sheet against the petitioner for alleged offences under Section 31 of the Travancore-Cochin Public Safety Measures Act Act V of 1950 and for abetment of offences 'under Sections 143, 341 and 353 of the Indian Penal Code. The Judicial District Magistrate on receiving the charge sheet has remanded the petitioner to custody and. Posted the case for preliminary, hearing to 27-12-1961 with the direction to furnish the accused with all Jhe relevant papers. It cannot, therefore, be said that the petitioner is now illegally or improperly detained. Where a charge sheet is submitted and the accused is rernanded to the judicial-custody under Section 344 of the Criminal Procedure Code the proper remedy it seems to me is to move for bail and not to move this court under Section, 491, Crl. P. C.


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