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Soni Natverlal Prabhudas and anr. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ1124; (1983)2GLR945
AppellantSoni Natverlal Prabhudas and anr.
RespondentState of Gujarat and ors.
Cases ReferredMarkendey v. State
Excerpt:
- - 2 had purchased, allegedly in good faith, a golden chain weighing 1 tola and 10 annas for rs 2840/- (rupees two thousand eight hundred forty only at his aforesaid shop at viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village panar, taluka viramgam, which is at a distance of about 10 kms. 2 as well as the subsequent order of remand to the police custody passed by the respondent no. . there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence .there is thus a well defined and well demarcated function in the field of crime detection and its.....orderd.h. shukla, j.1. the petitioner no. 1. soni natverlal prabhudas, is an elder brother of petitioner no. 2 soni jinabhai alias hasmukhlal prabhu-das, who has been added as petitioner no. 2 during i he pendency of this application, vide order dated 22-3-1982. the petitioner no. 2 had purchased, allegedly in good faith, a golden chain weighing 1 tola and 10 annas for rs 2840/- (rupees two thousand eight hundred forty only at his aforesaid shop at viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village panar, taluka viramgam, which is at a distance of about 10 kms. from viramgam. the petitioner no. 2 had no reason whatever to suspect the said property to be a stolen one at the time of the aforesaid purchase. it is alleged that petitioner no......
Judgment:
ORDER

D.H. Shukla, J.

1. The petitioner No. 1. Soni Natverlal Prabhudas, is an elder brother of petitioner No. 2 Soni Jinabhai alias Hasmukhlal Prabhu-das, who has been added as petitioner No. 2 during I he pendency of this application, vide order dated 22-3-1982. The petitioner No. 2 had purchased, allegedly in good faith, a golden chain weighing 1 Tola and 10 annas for Rs 2840/- (rupees two thousand eight hundred forty only at his aforesaid shop at Viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village Panar, Taluka Viramgam, which is at a distance of about 10 Kms. from Viramgam. The petitioner No. 2 had no reason whatever to suspect the said property to be a stolen one at the time of the aforesaid purchase. It is alleged that petitioner No. 2 paid a reasonable market price for the said property as stated above.

2. to 4. * * * * *

5. This application was presented by the petitioner No. 1 on 19-3-1982 while the petitioner No. 2 was in Police custody on account of the aforesaid remand order. It is submitted that the arrest of the petitioner No. 2 was not only illegal, unconstitutional and without jurisdiction. but the same was also mala fide. Hence, this application was originally filed by the petitioner No. 1 to challenge the propriety, legality, constitutionality, correctness and validity of the arrest of the petitioner No. 2 as well as the subsequent order of remand to the Police custody passed by the respondent No. 5. As pointed out earlier, the petitioner No. 2 has been added as a party later by an amendment order dated 22-3-1982 as by that time the respondent No. 5 had rejected the request of the investigating agency for further remand of accused No. 2 and as consequently accused No. 2 was released from the custody.

6. The application is filed under Articles 226 and 227 of the Constitution of India for the enforcement of the fundamental right under Articles 21 and 22(1) of the Constitution of India and statutory right under Section 50(1) of the Criminal Procedure Code, it is filed on the basis of the following main contentions:

1. The respondent Nos. 3 and 4 have acted mala fide as the petitioner No. 2 refused to satisfy the demand for illegal gratification of Rs 5,000/- made by the respondents Nos. 3 and 4 in the Police Station at Viramgam on 16th March, 1982.

2. The petitioner No. 2 was arrested in contravention and deliberate disregard of the constitutional mandates as embodied in Articles 21 and 22(1) of the Constitution of India and Section 50(1) read with Section 167(4) of the Criminal Procedure Code. Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 22(1) says that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. Section 50(1) of the Criminal Procedure Code enjoins that every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full perticulars of the offence for which he is arrested or other grounds of such arrest. These provisions are enacted as a matter of abundant caution to safeguard the rights and liberty of the accused persons against whom ex parte material is collected during the police investigation and who are arrested on the strength of such material so as to enable them to know at the initial stage as to why they are arrested and also to consult a legal practitioner of their choice. It is submitted that provision of Section 50. Criminal Procedure Code is a new one added on the recommendation of the Joint Committee. Its provisions are material and cannot be overlooked. It brings the law in conformity with the provisions of Art'cle 22(1) of the Constitution of India enabling the person arrested to move for Habeas Corpus to obtain his release. The Section confers a valuable right and non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. It is further submitted that a citizen's liberty cannot be curtailed except in accordance with the law. When a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest, in the face of such an affidavit the Police diary cannot be perused to verify the police Officer's claim of oral intimation of such particulars. Even if such oral communication was made, 'whether full particulars were communicated not being known,' the arrest and detention of the person must be termed illegal. These submissions are made on the basis of the reported ruling of the High Court of Calcutta in the case of Govind Prasad v. State of West Bengal, reported in 1975 Cri LJ 1249 and of the High Court of Gauhati in the case of Ajitkumar v. State of Assam reported in 1976 Cri LJ 1303.

3. It is further submitted that in our country, majority of population is absolutely illiterate and unaware of its fundamental and legal rights. It is, therefore, the duty of those who are exercising public power to be extra careful in seeing that no public power is abused or misused ince all powers are intended to serve the ends of justice and not to defeat the same.

4. The impugned action of the respondents. Nos. 2, 3 and 4 is without jurisdiction, inasmuch as the original complaint was filed at the Bavlu Police Station and therefore the respondent Nos. 2. 3 and 4 had no jurisdiction to carry out the investigation of the complaint filed at Bavlu Police Station and hence the search, seizure and arrest are illegal.

5. The petitioner No. 2 was a bona fide purchaser for value without notice and there was no material whatever with the Investigating Officer to connect the petitioner No. 2 with the offence alleged in the complaint filed at Bavlu Police Station regarding theft of ornaments. Thus, there was no reasonable ground whatever for the search, seizure and arrest of the petitioner No. 2.

6. The order of remand passed by the respondent No. 5 at 1,30 p. m. 17-3-1982 at Kadi is also illegal as the order does not comply with Section 167 of the Criminal Procedure Code. The respondent No. 5 has not recorded convincing reasons for granting remand of petitioner No. 2 to Police, The reasons recorded by him are imply the semblance of reasons. Respondent No 5 has not considered the specific grounds justifying the exercise of powers under Section 167 of the Criminal Procedure Code. The order is per functory and has resulted into prejudice to the petitioner No. 2 and miscarriage of justice.

7. The petitioners have challenged the search and seizure made by the respondents Nos. 2, 3 and 4 as being illegal, having been against the relevant provisions of the Criminal Procedure Code, namely Sections 165, 166 in regard to the search and Sees. 94, 165 and 166 in regard to seizure.

8. In the end, petitioners have challenged the entire investigation carried out by the Police against petitioner No. 2 as having been illegal and in violation of the provisions for investigation made under Sections 154 to 173 of the Criminal Procedure Code.

7. to 21. * * * * *

22. The gravamen of Mr. Barot's attack on the investigation was that the investigation is initiated against petitioner No. 2 and is carried out of mala fides.

* * *

23. The case of mala fides has been dealt with in detail by respondent No. 4 in his affidavit-in-reply.) * * *.

24. Mr. Mehta further submitted that at the stage of investigation, the question of mala fides may not be gone into. The matter is sub judice because a private complaint is filed against respondent No. 4. He further submitted that investigation is an independent agency and the Court would interfere only when there, was gross abuse of power. An irregularity here or there during investigation would not necessarily imply mala fides on the part of the Investigating Officers. Mr. Mehta submitted that if the matter is considered in the light of the allegations made by the petitioners and replies given by responsible police Officers in their respective affidavits-in-reply, a question arises whether such a situation has arisen which would call for intervention by the High Court at the stage of investigation. He further submitted that by the time the petition is heard, petitioner No. 2 is already released on bail and therefore are not the questions of illegal arrest and the illegal remand order academic and cannot these questions be considered at the time of the trial of the petitioner No. 2 and the trial of respondent No. 4 in the private complaint? If we decide these questions at this stage, would not the judicial proceedings be prejudiced? Mr. Mehta submitted two authorities for my consideration and they are the case of Madhu Limaye AIR 1969 SC 1014 : l969 Cri LJ 1440 and the case of State of Bihar v. J.A.C Saldanna : 1980CriLJ98 .

25. The Supreme Court in the case of Madhu Limaye (supra) has observed as under (at d. 1445):

We have been pressed to decide the question of mala fides which is the fourth contention of Madhu Limaye. Normally such matters are not gone into by this Court in these proceedings and can be more appropriately agitated in such other legal action as he may be advised to institute or take.

26. D. A Desai J., speaking for the Bench in the case of State of Bihar v. J.A.C. Saldanna (supra) observed at page 337 of AIR : Pp. 109, 110 of Cri LJ as under:.

There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence ....There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the Police and the Magistrate.

Desai J. has quoted from a Privy council case reported in (1944) 71 Ind. App. 203 at page 213: (1945-46 Cri LJ 413 at P. 417) (King Emperor v. Khwaja Nazir Ahmad) as under :

In India as has been shown, there is a statutory right on the part of the Police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, 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. The functions of the judiciary and the, police are complementary, not overlapping, and the combination of individual liberty with a due 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 intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus....

Desai J., further observed as under Cat p 111 of Cri LJ:

The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material; In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

27. These observations are a caveat in the present proceedings. It is hazardous to come to any conclusion on a serious question of the allegations of mala fides against the investigating officers in the circumstances of the present case outlined above, only on the strength of affidavits.

28. The next important allegation which is made by Mr. N. K. Barot is that respondents Nos. 2 to 4 have acted without jurisdiction. He submitted that considering the relevant provisions of the Criminal Procedure Code, and particularly Section 156(1) thereof, respondent No. 4 could not have entered investigation and therefore whatever he did or caused to be done was without jurisdiction. if he was working under the instructions of his superior officer, as alleged, even then his superior officer could not have authorised him to undertake investigation of any case which was; not within the jurisdiction of respondent No. 4. In order to appreciate the argument of Mr. N.K. Barot. I shall reproduce Section 156(1) of the Criminal Procedure Code, which is as under:

156 (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

Mr. Barot's argument was two-fold. He submitted that this case would have been investigated only by P S. I. Bavlu Police Station in whose jurisdiction the offence was commit led. Respondent No. 4 may have been an officer superior to P. S. I. Bavlu Station. Nevertheless, respondent No. 4 did not have jurisdiction under Section 156(1) of the Criminal Procedure Code to investigate the case in question.

29. Assuming that Section 36 of the Criminal Procedure code applied to the present case, even then respondent No. 4 did not have territorial jurisdiction to investigate the case in question.

30. In order to meet with this argument of Mr. Barot, Mr. J.U. Mehta invited my attention to the provisions of Section 36 of the Criminal Procedure Code read with Section 156(2) thereof. Section 36 of the Criminal Procedure Code reads as under:

36. Police Officers superior in rank to an officer in charge of a police station may exercise the same power, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.

Mr Mehta submitted that Section 36 of the Criminal Procedure Code clearly meets with the first plank of Mr. Barot's argument, it is not in dispute that respondent NO'. 4 was a Police Officer superior in rank to the Officer in charge of a Police Station at Bavlu. Respondent No. 4. therefore, it was submitted, was completely justified in exercising the power which could have been exercised by P. S I., Bavlu Police Station and this he had acted within his jurisdiction while investigating the case in question. In my opinion, Mr. Mehta's submission is quite correct and Section 36 protect respondent No. 4 in his undertaking the investigation of the ease in question.

31. So far as the second plank of Mr. Barot's argument is concerned, the provision made in Section 156(2) of the Criminal Procedure Code again protects respondent No. 4. Section 156(2) of the Criminal Procedure Code reads as under :

156. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

Section 156(2) of the Criminal Procedure Code is a reply to Mr. N.K. Barot's challenge to the territorial jurisdiction of respondent No. 4. I do not propose to examine this question at great length since the issue raised by Mr. Barot is squarely dealt with and decided by Brother S B. Majmudar J, in Liladesitade Pavaiya v. State reported in 1982 (2) 23 Guj LR 734 : 1983 Cri LJ 934. A young boy was enticed away by the accused to Baranpura in Baroda where eunuchs were staying. After some time the boy was taken to Kalol. There, the other accused persons cut off the private part of the boy by a weapon like small sword. After the complainant regained consciousness, he was brought back to Baroda. The complainant alleged that the entire incident had happened because of his ignorance and m:nor age, and now he was made to live in a form of a eunuch. The complaint was first filed at Chhot-audepur from which it was transferred to Karelibag Police Station, Baroda where the officer-in-charge started investigation as the alleged offences were cognizable in nature The petitioners-accused Nos. 3 to 5 urged to the High Court that the Karelibag police Station had no authority or jurisdiction whatsoever to investigate the alleged offence under Section 156(1) of the Criminal Procedure Code, It was submitted that the offence of forcible emasculation which at -the highest may constitute an offence under Section 326 read with Sections 506 and 114 of the Indian Penal Code, was alleged to have been committed at Kalol. Therefore the investigation against the petitioners being carried on was contrary to law and therefore 1 he petitioners were entitled to get their fundamental rights under Article 21 enforced by issuance of a proper writ against the investigating agency. It was held that prima facie the offence of emasculation ' alleged to have been committed in Kalol in Mehsana Dist, was part and parcel of a common design and are components of the same transaction and the castration of the concerned victim was done with a view to make him an eunuch who could be a useful addition to their class of professional beggars. The relevant averments in the complaint clearly indicated that various offences were alleged to have been committed by different concerned accused as part and parcel of a comprehensive one and the same transaction. It was held under the circumstances of the case that the Criminal Court at Baroda had ample jurisdiction to try the offences alleged against the concerned accused. In the course of the judgment. Brother Majmudar J. observed as regards Sub-section (2) of Section 156 of the Cr. P.C. in the following terms:

Sub-section (2) of Section 156 of the Criminal Procedure Code in terms lays down that no proceedings of Police Officer in any such case can be called in question on the ground that such officer was not empowered under this Sub-section to investigate. The legislature has used wider word 'police Officer' meaning thereby that immunity is. sought to be given to the investigating proceeding initiated by any police officer, which in its turn would include even an Officer incharge of the Police Station, and this immunitive which states that such investigation shall not be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.... The net result, therefore, is that even assuming that a police officer in charge of a Police Station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively, an Officer other than the Officer in charge of the Police Station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said police station, in either case, Section 156(2) immunises this investigation against any possible attack on the ground of absence of power with the concerned investigating officer.

He further observed as under:

If the legislature in its wisdom has insulated inquiries and trials before the criminal Courts against the attacks on the ground of absence of territorial jurisdiction, save and except in a given contingency where failure of justice and material prejudice are demonstrated, it would be too much to hold that at prior stage of investigation a police officer who is investigating into the offence which does not fall within his territorial jurisdiction, would be required to be totally prohibited from proceeding with investigation on the ground that some of the offences into which he is investigating fall outside the ambit of his local jurisdiction.

Brother Majumdar J. has thoroughly scrutinized the question of applicability of Section 156(2) of the Criminal Procedure Code and I do not want to add to my judgment by travelling on the same ground. Suffice it to say that i am in agreement with the view taken by him.

32. Thus. Section 36 and Section 156(2) of the Criminal Procedure Code meet with Mr. Baro's challenge that respondent No. 4 has acted without jurisdiction.

33. Mr. Barot also assailed the jurisdiction of respondent No. 2 and respondent No. 3 in assisting respondent No. 4 in carrying out the investigation against petitioner No. 2. This challenge of his is| met will by the State by resorting to Section 64 of the Bombay Police Act which defines duties of a Police Officer.

64. It shall be the duty of every Police Officer:

x x x x x x x(e) to aid another police Officer when called on by him or in case of need in the discharge of his duty, in such ways as would be lawful and reasonable, on the part of the officer aided.

In this connection, the affidavit of respondent No. 4 may again be perused wherein respondent No. 4 has stated as under:

I say that having received the information about the theft committed in this case, my superior instructed me to make a thorough investigation of this case with the help of respondent No. 3. I, therefore, further investigated into the matter and could trace the accused in the present case with the help of the respondents Nos. 2 and 3.

Respondent No. 2 has stated in his affidavit-in-reply as under :

I say that I assisted in the investigation as per the demand of the respondent No. 4 and I only assisted him in the investigation. I. have done nothing more than that.

Respondent No. 3 has stated in his affidavit-in-reply as under:

I say that I assisted respondent No. 4 in carrying out the investigation as per the order of my superior. I say that I remained with respondent No. 4 during this investigation.

In view of this statutory provisions of the Bombay Police Act, it cannot be said that what respondents Nos. 2 and 3 did in the course of the investigation was beyond their judisdiction. On the contrary, they were duty bound to do what they did under the circumstances of the case. Mr. Barot's challenge, therefore, on the ground of jurisdiction of respondents Nos. 2, 3 and 4 to investigate the case in question must fail.

34. to 42. xx xx xx xx

43. The last argument which I must now consider requires special notice. Mr. Barot submitted that while respondent No. 4 arrested petitioner No. 2, petitioner No. 2 was not supplied full particulars of the offence for which he was arrested or other grounds for such arrest. Mr. Barot submitted that the arrest of petitioner No. 2 is in violation of Article 21, Article 22 of the Constitution of India and Section 50(1) of the Criminal procedure Code. Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(1) says that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by. a legal practitioner of his choice. Section 50(1) of the Criminal Procedure Code says that 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.

44. Mr. Barot submitted that the term 'grounds for arrest' has repeatedly been interpreted by the Supreme Court of India as meaning all relevant facts and statements and evidence collected during the course of investigation justifying the arrest. It is stated at paragraph 12 of the petition that the petitioners do not know, 'even till date' (that is to say till the filing of the petition and its amendment later) as to why the petitioner No. 2 was arrested and for which offence he has been arrested and on the strength of which material he has been arrested by the Police. I may interrupt at this stage to state that this statement of the petitioners does not appear to be correct in the light of the affidavit of respondent No. 4.

45. Mr. Barot has heavily relied upon the two reported cases, namely Govind prasad v. State of West Bengal 1975 Cri LJ 1249 and Ajit kumar v. State of Assam 1976 Cri LJ 1303.

46. Mr. Barot has relied upon the following observation from the case of Govind Prasad v. State of West Bengal 1975 Cri LJ 1249 at P. 12541 (supra):

Section 50 is a new one, added on the recommendations of the Joint Committee. Its provisions are material and cannot be overlooked. It brings the law in conformity with the provisions of Article 22(1) of the Constitution of India. enabling the person arrested to move for habeas corpus to obtain his release.

The section confers a valuable right and a non-conformance to its mandatory provisions is a non-conformance to the procedure established by law.

47. Mr. Barot relied upon the following passage from the case of Ajitkumar v. State of Assam 1976 Cri LJ 1303 (Gau) (supra).

The section is mandatory. A citizen's liberty cannot be curtailed except in accordance with law. When a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest in the face of such affidavit, the police diary cannot be perused to verify the police officer's claim of oral intimation of such particulars. Even if such oral communication was made, whether full particulars were communicated not being known the arrest and detention of the person is illegal.

48. I shall first consider the observation cited by Mr. Barot from the case of Govind Prasad v. State of West Bengal 1975 Cri LJ 1249 (Cal.) (supra). I, with respect, agree with the proposition cited by Mr. Barot from head-note (C) of the same ruling. In order, however, to understand and appreciate its impact on the present case, it is necessary that the facts of the reported ruling are considered. 'On a complaint lodged by one Sat Paul Kanwar. described as a partner of the Vardhman General and Spinning Mills Ltd., at P. S. Sadar Ludhiana. Ludhiana P. S. Case No. 620 dated 15-12-1974 was started under Sections 406/408/468/471 of the Indian Penal Code. In course of the investigation that followed, the accused-petitioner who is stated to be a businessman living at 132/1, Mahatma Gandhi Road, Calcutta was arrested on the 20th March, 1975, by the Ludhiana Police with the assistance of the Police of the Jorasanko police Station, in Calcutta and was produced on the same day before the learned Additional Chief Metropolitan Magistrate. Calcutta, On an application for bail moved on behalf of the accused-petitioner Sri K. G. Choudhury. Additional Chief Metropolitan Magistrate. Calcutta by his order dated the 20th March, 1975, rejected the prayer for bail 'at this stage,' and allowed the officer concerned coming from Ludhiana to take the accused away for being produced at the Ludhiana Court and to report compliance to the Calcutta Court by 8-4-1975. 'This was the impugned order which formed the subject-matter of the application for bail. An argument was advanced inter alia on behalf of the petitioner relating to a non-consideration on the part of the learned Additional Chief Metropolitan Magistrate.. Calcutta of a non-conform-ance to Section 50 of the New Code of Criminal Procedure Code (Act 2 of 1974).' It was in that context thai it was observed that Section 50 of the Code of Criminal Procedure is a new one and that its provisions are material and cannot be overlooked. It was submitted that full particulars of the offences as enjoined under the new provisions were not communicated to the accused-petitioner when he was arrested without warrant in Calcutta. N. C. Talukdar. J., speaking for the Bench observed that the Section confers a valuable right and a non-conformance to its mandatory provision is a non-conformance to the procedure established by law. What is, however, to be observed is that the full particulars of the offences were not given to the petitioner-accused. In fact, from the facts which are given at paragraph 2 of the reported case, it appears that no particular of the offences for which the petitioner was arrested was supplied to him. It is to be noted that the incorporation of this provision brings the law in conformity with the provisions of Article 22(1) of the Constitution of India enabling the person arrested to move for habeas corpus to obtain his release. Mr. Barot's main contention was that the officer concerned should have not only supplied the full particulars of the offence to the petitioner No. 2, but that they should have been in writing along with the copies of the relevant documents. Mr. Barot's submission was that Section 50(1) of the Criminal Procedure Code is to be read not only in the light of Article 22(1) but Article 22(5) of the Constitution of India also. Article 22(5) requires that when any person is detained in pursuance of an order made under any law providing for preven:ive detention, the authority making the order shall, as soon as may be, communicate to such pardon the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. So far as Section 50(1) of the Cr P.C. is concerned, it requires every police Officer or other person arresting any person without warrant to forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest, Mr. Barot submitted that although it is not stated in the section that full particulars of the offence should be supplied in writing, that would be the meaning which must be deduced from the requirement of 'communicating' the full particulars of the offence to the accused. While the reported case indeed emphasises the mandatory character of the requirement under Section 50(1) of the Criminal P.C. and holds that non-compliance with this provision amounts to non-conformance to the procedure established by law, it nowhere lays down that the requirement of Section 50(1) is pari materia with the requirement under Article 22(5) of the Constitution of India. On the contrary, it is expressly observed at paragraph 9 of the judgment that Provision of Section 50(1) of the Criminal P.C. brings the law in conformity with the provisions of Article 22(1) of the Constitution of India. The requirement of Article 22(1) of the Constitution of India is that a person who is arrested shall not be detained in custody without being informed, as soon as may be. of the grounds for such arrest. Article 22(1) and Article 22(5) of the Constitution of India are differently worded and the requirements of both are different, it is difficult to agree with Mr. Barot that Section 50(1) of the Cri P.C. must be interpreted so far as its requirements are concerned in the light of Article 22(5) of the Constitution of India that it should not be restrained in its demand of compliance with Article 22(1) of the Constitution of India. The authority considered above does not support this view of Mr. Barot.

49. I may now refer to the second quotation cited by Mr. Barot from the case of Ajitkumar v. State of Assam (1976 Cri LJ 1303) (supra). The quotation is reproduced above, I may say that the quotation is lifted and cited here out of the context in the fact situation of the present case. We may see how the facts of the reported case are materially different from those of the present case. The petitioner was the ex-President of the Assam College Teachers Association, President of the Assam Political Science of the Handique Girls' College, Gauhati. 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, that the police indiscriminately arrested hundreds of students. The petitioner while he was relaxing at his house after his meal, the Officer-in-Charge of the Gauhati Police Station 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. Kamrup. 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. Later on, he applied for bail which was granted. The petitioner applied under Section 482 of the Criminal P.C. 1973. He did not deny that the Police Officer did not have the power to arrest an accused if he is suspected of a cognizable offence, but his submission was that in that case the accused is entitled to communication of the full particulars of the offence under Section 50 of the Criminal Procedure Code and in that case this was not done In his affidavit, he specifically stated that communication of particulars of the offence has not been made to him in spite of the orders of the Chief Judicial Magistrate to do so. This allegation was not countered either by the State of Assam, respondent No. 1 or the Officer-in-Charge of the Thana (respondent No. 3) by any affidavit. In this situation, Baharul Islam J. (as he then was) observed as under (at p. 1305):

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.

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

(Underline supplied).

50. Mr J. U. Mehta the learned Public Prosecutor rightly submitted that so far as the concluding observation of the judgment is concerned, it helps the prosecution rather than the petitioners, it is necessary that those observations are also cited here. Baharul Islam J., concluded as under:

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 end in a final report, or it there be a charge-sheet unwarranted by materials, the petitioner can approach an appropriate court at the appropriate lime for quashing the case.

51. So far as the present facts are concerned, respondent No. 4 has filed a detailed affidavit, the contents of which we have seen above. The respondent No. 4 has elaborately stated the facts leading to the arrest of petitioner No. 2 and as to how he was pointed out by the accused of the original case under investigation as the person to whom he had sold the stolen ornaments. Having narrated these facts in details, respondent No. 4 has stated. 'I say that the petitioner No. 1 was given the information in presence of the petitioner No. 2 about his arrest and the petitioner No. 2 was also examined and was given the reasons for his arrest.' So, it cannot be said that respondent No. 4 has not stated on affidavit the facts which would counter petitioner's affidavit wherein the allegation of non-compliance with Section 50(1) of the Criminal P. C are averred. It is pertinent to observe that we do not find any observation in this case also that the compliance of Section 50(1) of the Criminal Procedure Code should be in writing.

52. Mr. Bard's main argument in this connection was that the compliance with Section 50(1) of the Criminal Procedure Code should be interpreted not only in the light of Article 22(1) of the Constitution of India, but also in the light of Article 22(5) of the Constitution of India Mr. Barot cited several authorities founded upon Article 22(5) of the Constitution of India to convince me that they had application while interpreting Section 50(1) of the Criminal procedure Code and therefore in comply with Section 50(1) of the Cri. P.C. the Prosecution ought to have supplied to petitioner No 2 full particulars of the offence in writing along with the copies of the documents on the contents of which the prosecution relied. Mr. Barot could show no authority in support of his argument and he candidly admitted that such an interpretation of Section 50(1) of the Criminal Procedure Code was sought by him without the support of any authority, it may be reiterated here that the authorities cited by Mr. Barot and discussed by me earlier, namely the case of Govind Prasad v. State of West Bengal (1975 Cri LJ 1249) (Call (supra) and the case of Ajitkumar v. State of Assam (1976 Cri LJ 1303) (supra) do not in any way support this argument of Mr. Barot. Mr. Barot has cited several authorities on each point of submission on this aspect. He cited authorities to explain the words 'forthwith,' 'grounds', 'communication of information', 'opportunity of representation'. He submitted that the grounds means the same thing in Article 22(1) and Article 22(5) of the Constitution of India meaning entire statement of facts, documents and other materials relied upon by detaining authority for passing detention order. He submitted that documents are an integral part of grounds.

53. As against these arguments of Mr. Barot, Mr. Mehta submitted that the facts and circumstances leading to the arrest of petitioner No. 2 and the affidavit-in-reply filed by respondent No. 4 showed that the petitioner No. 2 was given the reasons for his arrest and also all the documents namely the statement of the accused, Panchnama recorded in his presence and all that transpired leading to the arrest of petitioner-No. 2 occurred in his own presence. The' provisions of Article 22(1) of the Constitution of India and Section 50(1) of the Criminal Procedure Cde were fully complied, with. Mr. Mehta submitted that; the compliance or non-compliance with the provisions of Article 22(1) of the Constitution of India and Section 50(1) of the Criminal Procedure Code depends upon the facts and circumstances of each case. In the present case, there was full compliance of Article 22(1) of the Constitution of India and Section 50(1) of the Criminal Procedure Cde. 'Grounds' means the reasons and the reasons were given for his arrest. The Investigating Officer were led by the accused Babal-sang (Fobarsang) to the shop of the present petitioner No. 2 and Babalsang pointed out petitioner No. 2 at his own shop. Respondent No. 4 had interrogated petitioner No. 2 at his shop and petitioner No. 2 had produced 'Bani' with was melted from the stolen gold ornaments, while he did not produce other ornaments which were allegedly sold to him by accused Babalsang, Petitioner No. 2 had also produced the bill book which has been commented above. After further interrogation of petitioner No. 2 by respondent No. 4. the shop and the house of petitioner No. 2 were searched for stolen ornaments. There were the circumstances of which the petitioner No. 2 was clearly aware. Even so. respondent No. 4 has stated that he had given the reasons of petitioner No. 2's arrest to petitioner No. 2. Mr. Mehta submitted, can it be said by any stretch of imagination that petitioner No. 2 was not communicated the full particulars of the offence for which he was arrested? Mr. Mehta submitted that petitioner No. 2 was communicated everything necessary at the earliest opportunity to enable him to know exactly as to what the accusation against him was, so that he could exercise his right of consulting a legal practitioner of his choice. in fact, petitioner No. 2 did consult his advocate who argued the application filed by the prosecution for remand and at no stage was any grievance made before the learned Magistrate about non-compliance with Section 50(1) of the Criminal Procedure Code by the prosecution. Petitioner No. 2 was produced before the learned Judicial Magistrate. First Class, Kadi within 24 hours from his arrest. The report was submitted to him and the advocate for petitioner No. 2 vehemently argued before the Court why police remand should not be given. Thus petitioner No. 2 had full information and had instructed his lawyer about the full particulars of the offence for which he was arrested. Otherwise, the Advocate for the petitioner No. 2 would certainly have made a grievance that petitioner No. 2 did not know why he was arrested or detained. Mr. Mehta submitted, can it be said under these circumstances that petitioner No. 2 was not communicated or informed of the reasons for his arrest or the particulars of the offence for which he was arrested? Quoting from the case of Pranab Chatterjee v. State of Bihar and another in Writ Petition No. 326 of 1970. decided by the Supreme Court on 13-10-1970 : (1970)3SCC926 , Mr. Mehta contended that in that case the contention of the arrested petitioner was that he was never informed of the grounds for his arrest and that he was never produced before the Magistrate after his arrest The Supreme Court after discussing the facts and circumstances of that case held. 'The circumstances under which the petitioner was arrested along with others clearly establish that the petitioner knew the nature of the alleged offence for which he was arrested.'

54. Mr. Mehta also argued citing the case of Markendey v. State, 1976 All LJ 88 that the Article 22(1) of the Constitution of India will come into play only when a person who was arrested was being detained in custody. If the petitioner was granted bail, it cannot be said that he was being detained in the custody and therefore Article 22(1) of the Constitution of India cannot apply. Mr. Mehta also referred to the reported cases of Calcutta High Court and Gauhati High Court, discussed by me above, and submitted that in neither of these cases it was laid down that the particulars of the offence or grounds of arrest should be communicated to the person arrested in writing. The only requirement of Article 22(1) of the Constitution of India and Section 50(1) of the Criminal Procedure Code was that the person arrested must know the particulars and the reasons for his arrest as to why he is being arrested. The petitioner who as arrested must be informed of the particulars about the offence for which he is arrested and each case depends upon its own facts.

55. I might say at this stage that I accept the arguments of the learned Public Prosecutor Mr. Mehta that each case is required to be decided in the light of its own peculiar facts and that it is not one of the requirements of Section 50(1) of the Criminal P.C. that the communication of the full particulars of the offence for which the accused is arrested or other grounds for such arrest should necessarily be conveyed to him in writing. I also agree with Mr. Mehta's submission that the requirements of Article 22(1) and Article 22(5) of the Constitution of India are laid in relation to different contingencies. Article 22(4) of the Constitution of India provides that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. So far as the person arrested under preventive detention is concerned, he is not required to be produced before a Magistrate within the period of 24 hours of such arrest. In case of a person who is arrested or detained under any law providing for preventive detention, Causes (1) and (2) of Article 22 of the Constitution of India will not apply. In case of a person who is arrested under a law. other than the law providing for preventive detention, he is required to be produced, before the Magistrate within the period of 24 hours of such arrest and such arrested person cannot be detained in custody beyond the said period without the authority of such judicial authority. Therefore so far as detention other than preventive detention is concerned, the provisions of Article 22(1) and (2) of the Constitution of India will apply and so far as preventive detention is concerned the remaining provisions of Article 22 of the Constitution of India will apply. All those cases in which the Supreme Court has interpreted Cause (5) of Article 22 of the Constitution of India in relation to preventive detention, will not apply in cases of arrest or detention under law other than the law of preventive detention.

56. In this view of the matter, I cannot accept Mr. Barot's last argument.

57. In the result, the present proceedings fail as indicated above. The petition is accordingly dismissed and the rule is discharged.

58. x x x x x


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