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Chakkappan and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 187 of 1959
Judge
Reported inAIR1960Ker297; 1960CriLJ1212a
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 151, 167 and 167(2)
AppellantChakkappan and ors.
RespondentState of Kerala
Appellant Advocate K. Velayudhan Nair and; V.S. Moothathu, Adv.
Respondent AdvocatePublic Prosecutor
DispositionRevision dismissed
Cases ReferredState of Bihar v. Ram Naresh
Excerpt:
.....offence cannot be-otherwise prevented'.the conditions to be satisfied by this section are that the police officer must have knowledge that the person concerned has a design or plan to commit a cognisable offence and that the police officer must be satisfied that the commission of such offence cannot be prevented except by the arrest of the person. as pointed out in in re, om prakash gupta, air 1949 mad 744, it is essentially a matter of satisfaction of the police officer himself that the two conditions mentioned above do really exist in a given case so as to justify action being taken under section 151. such action had to be taken immediately, as otherwise the object of the section would be defeated. in the present case, there is the affidavit of the police officer to show that he had..........the present revision petition is directed against that order. 2. the circumstances under which a police officer may arrest a person without a warrant from a magistrate, are enumerated in section 54 of the code of criminal procedure. this section contains the general provisions authorising such arrest. the arrest of the petitioners on 18-6-1959 was not under any of the conditions specified in section 54. over and above the power conferred by that section, a special power has been conferred by section 151 of the code of criminal procedure to arrest a person without orders of a magistrate or without warrant. this section occurs in chapter xiii of the code dealing with preventive action by the police. section 151 states that ''police officer knowing a design to commit any cognisable.....
Judgment:

S. Sankaran, C.J.

1. Petitioners are accused 1 to 6 in Crime No. 77/1959 registered at the Chalakudt Police Station. They were arrested under Section 151 of the Code of Criminal Procedure by the Inspector in charge of that station. The arrest was on 18-6-]956 and on the next day they were produced before the First Class Magistrate at Chalakudi with a request that they may be remanded to custody pending investigation of the case registered against them. The Magistrate passed an order remanding them to custody for a period of 14 days. On be-half of the petitioners an application was filed before the Magistrate challenging the legality of their arrest by the Inspector of Police and also of the Magistrate's order remanding them to custody. The Magistrate dismissed that application. The present revision petition is directed against that order.

2. The circumstances under which a Police Officer may arrest a person without a warrant from a Magistrate, are enumerated in Section 54 of the Code of Criminal Procedure. This section contains the general provisions authorising such arrest. The arrest of the petitioners on 18-6-1959 was not under any of the conditions specified in Section 54. Over and above the power conferred by that section, a special power has been conferred by Section 151 of the Code of Criminal Procedure to arrest a person without orders of a Magistrate or without warrant. This section occurs in Chapter XIII of the Code dealing with preventive action by the Police. Section 151 states that

''Police Officer knowing a design to commit any cognisable offence may 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 conditions to be satisfied by this section are that the Police Officer must have knowledge that the person concerned has a design or plan to commit a cognisable offence and that the Police Officer must be satisfied that the commission of such offence cannot be prevented except by the arrest of the person. As pointed out in In re, Om Prakash Gupta, AIR 1949 Mad 744, it is essentially a matter of satisfaction of the Police Officer himself that the two conditions mentioned above do really exist in a given case so as to justify action being taken under Section 151. Such action had to be taken immediately, as otherwise the object of the section would be defeated. The correctness of the knowledge of the Police Officer as to the design of a person to commit a cognisable offence, cannot ordinarily be scrutinised by the Court. Similarly, the court cannot substitute its own opinion in place of the opinion of the Police Officer on the question whether the commission of the offence could be prevented 'by some means other than the arrest of the person designing to commit such offence.

In the present case, there is the affidavit of the Police Officer to show that he had reliable information of a design by the petitioners to attack and destroy the police outpost and other Government buildings and also to destroy the toddy shops at Chalakudi and that he was satisfied that the commission of such cognisable offences could be prevented only by the arrest of the petitioners. Prima facie, there is nothing to indicate that these averments were baseless or false. Under these circumstances, the arrest of the petitioners under Section 151 was perfectly legal and the Magistrate was right in refusing to interfere with that arrest.

3. The next question for consideration is whether the Magistrate's order remanding the accused to custody for 14 days was illegal. Section 61 of the Code of Criminal Procedure contains a mandatory provision that a person arrested without warrant should not bo detained in Police custody for more than 24 hours without obtaining a special order from a Magistrate under Section 167. Subsection (1) of Section 167 states that where it is felt that the investigation of the case taken up against the arrested person cannot be completed within a period of 24 hours of his arrest and that there are grounds that the accusation or information againstthe accused person is well-founded, the Officer in charge of the Police station shall forthwith transmit to tile nearest Magistrate, a copy of the entries in the diary relating to the case and shall also produce the accused before the Magistrate.

Sub-section (2) states that the Magistrate, towhom the accused person is forwarded under Sub-section (1), 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 15 days on the whole. It was in the exorcise of this power that the Magistrate had remanded the petitioners to custody for 14 days. It is argued on behalf of the petitioners that the power under Sub-section (2) of Section 167 can be exercised by the Magistrate only where the accused has been arrested and a case registered against him for the actual commission of a cognisable offence and not where the arrest has been under Section 151 of the Code. I can find no justification for thus limiting the scope of Section 167. The conditions required to attract that section are that there must be a person arrested and detained in custody and that it must appear to the Police Officer that the investigation against the arrested person cannot be completed within a period of 24 hours of his arrest and that there are grounds for believing that the accusation or information against the arrested person is well-founded.

The arrest need not necessarily be in connection with a case for the actual commission of a cognisable offence. The arrest may as well be under Section 151 of the Code in order to prevent the commission of a cognisable offence. In either case, a reasonable time may be required for investigating into the accusation of the person concern-ed and it is to enable the conduct of such an investigation in an effective manner that the Magistrate has been empowered under Sub-section (2) of Section 167 to pass an order remanding the accused to custody. If the arrest is under Section 151 and if on investigation it is found that proceedings under Section 107 have to be initiated against the arrested persons, then the charge may be suitably altered so that further proceedings may be carried on under that section. But this does not mean that the order of remand passed at the earlier stage will be illegal. Such a contention urged on behalf of the petitioners does not find real support from Shravan Kumar Gupta v. Superintendent, District Jail, AIR 1957 All 189, cited on their behalf.

All that was decided in that case is that where the accused persons were arrested and were detained in connection with the proceedings for prevention of the breach of the peace under Section 107, Criminal Procedure Code, and not on any allegation or suspicion that they had committed any offence, Section 167 will not be applicable. It was also pointed out in that case that in proceedings underSection 107 an order detaining the accused persons in custody can be passed only in accordance with the procedure contemplated in Ss. 112 to 118. The position in the present case is entirely different. The order remanding the accused to custody was passed merely to enable the Police to complete the investigation into the accusation against the petitioners. It has been pointed out by the Supreme Court in State of Bihar v. Ram Naresh, 1957 Cri LJ 567 at p. 571: ((S) AIR 1957 SC 389 at p. 393) that the continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by the Magistrate. Thus it cannot be said that the, remand order passed by the Magistrate in the present case is illegal or without authority.

4. In the result this revision petition is dismissed.


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