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Anopkunver Kantha Kunver and anr. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1235
AppellantAnopkunver Kantha Kunver and anr.
RespondentState and ors.
Cases ReferredState of Madhya Pradesh v. Shobharam
Excerpt:
- - one day one enuch anopkunver went to him and told him that he would be given a very good service, and so saying, said enuch took the complainant to akota where he was kept for three days. during this period one another enuch kantakunver went to the complainant at akota and told him that they will get a good service for him in the hotel. 2 cannot be joined as an a better to petitioner no. sanchaita investments and swapankumar guha 1982crilj819 ,and it was specifically observed that a first information report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. apparently, the facts clearly show that when they were arrested, they were.....v.v. bedarkar, j.1. this petition is filed by the petitioners under articles 226 & 227 of the constitution of india for the enforcement of their fundamental rights under article 21 of the constitution of india.2. the petitioners are involved in offences punishable under sections 364(7) (this section is mentioned in the simple copy of the first information report produced at annexure 'a', but i am shown the original first information report wherein offence is shown to be under section 363 of the indian penal code), 326, 506 & 114 of the indian penal code.3. the allegations of the prosecution are that one boy named mohamed hanif, aged about 15 years, was serving at a canteen in aradhana talkies in. baroda. he originally belonged to chhota udepur, and it is the allegation in the complaint.....
Judgment:

V.V. Bedarkar, J.

1. This petition is filed by the petitioners under Articles 226 & 227 of the Constitution of India for the enforcement of their fundamental rights under Article 21 of the Constitution of India.

2. The petitioners are involved in offences punishable under Sections 364(7) (this section is mentioned in the simple copy of the First Information Report produced at Annexure 'A', but I am shown the original First Information Report wherein offence is shown to be under Section 363 of the Indian Penal Code), 326, 506 & 114 of the Indian Penal Code.

3. The allegations of the prosecution are that one boy named Mohamed Hanif, aged about 15 years, was serving at a canteen in Aradhana Talkies in. Baroda. He originally belonged to Chhota Udepur, and it is the allegation in the complaint that one year before he was staying in the station area. But it is not clear whether that station area was of Baroda or Chhota Udepur. At any rate, he had come to Baroda due to the circumstances for serving. He served at the said canteen for one and a half years. One day one enuch Anopkunver went to him and told him that he would be given a very good service, and so saying, said enuch took the complainant to Akota where he was kept for three days. During this time, the complainant was permitted to put on pant and bush-shirt. During this period one another enuch Kantakunver went to the complainant at Akota and told him that they will get a good service for him in the hotel. So saying, the complainant was taken to the Akhada of Enuchs at Beranpura in Baroda. Thereafter be was taken in round about villages. At Beranpur the complainant was forcibly given a dress of a lady. He was not permitted to run away because there was strict vigilance. Then he was taken to Kalol by Kantakunver. At that time it is the allegation that the enuchs threatened him that if he would inform anybody he would be killed. Therefore, due to this threat he did as they said. Then it is his case that at Kalol he was staying at one enuch Lilade Sitade. On the fourth night one woman named Hiraben was called. Said Lilade Sitade is accused No. 3 and Hiraben is accused No. 4. At about 3-00 a.m. one person named Shankerbhai (accused No. 5) emasculated his male organ. Therefore, the complainant became unconscious and remained so for six days. Thereafter he remained at Kalol for one month and then he was brought to Beranpura at Baroda. Then he has narrated as to what was charged by Hiraben and also how much he collected from begging. Then he gave a complaint at Kareli Baug Police Station which was registered on 27-7-1982 at 19-30 hours It is also his case that his name was changed to Jyotikunver Anopkunver, showing that he was find of accd. No. 1 Anopkunver.

4. On the said complaint, the Police at Baroda started investigation and all the accused were arrested. Accused No. 3 Lilade, accused No. 4 Hiraben and accused No. 5 Shankerbhai through their Advocate Mr. N. K. Barot (who represents the present petitioners in this petition also) filed Special Criminal Application No. 1171 of 1982 on various allegations, that all the accused cannot be tried together and the Baroda Court has no jurisdiction to try the case, and the Baroda police has no jurisdiction to conduct the investigation. The said petition was dismissed by this Court (S. B. Majmudar, J.).

5. Now, the present two petitioners have come with the following grievances:

(1) The fundamental rights of the petitioners under Articles 21 & 22(1) of the Constitution of India are breached or invaded.

(2) The police during the investigation or at the time of the arrest of the petitioners have not followed the mandatory provisions of Section 50(1) of the Code of Criminal Procedure, 1973.

(3) That the Baroda Court has no jurisdiction to try petitioner No. 2 and original accused Nos. 3 to 5.

(4) That the joint trial of petitioner No. 1 with other accused is not permissible.

(5) The averments made in the complaint do not make out any ingredient of the offence with which petitioner No. 1 is charged.

(6) Petitioner No. 2 cannot be joined as an a better to petitioner No. I as once the complainant is taken out of the lawful guardianship, the offence of kidnapping is over and it is not a continuing offence.

6. In support of these averments, Mr. Barot has taken me through the complaint, averments made in the petition and also the provisions of law and various rulings. Though he has cited various rulings to show that even if the matter is for investigation with the police, but as the first information report is filed before the police does not make out any offence, then this Court can quash the proceedings. Attempt was made by Mr. J. M. Panchal, learned Public Prosecutor for the State by referring to other rulings tried to show that the province of investigation by the police and the province of trial by the Court are entirely different and. therefore, the Court should not interfere into the investigation. To support his arguments, he has relied on the decisions of the Supreme Court in State of Bihar v. J.A.C. Saldanna : 1980CriLJ98 ; Kurukshetra University v. State of Haryana : 1977CriLJ1900 and Jehansingh v. Delhi Administration : 1974CriLJ802 . In these decisions after relying on the decision of the Privy Council in King Emperor v. Khwaji Nazir Ahmad (1944) 71 Indian Appeals 203, it was held that 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, and the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

7. All these decisions were considered by the Supreme Court in State of West Bengal v. Sanchaita Investments and Swapankumar Guha : 1982CriLJ819 , and it was specifically observed that a First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. It was further observed that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It is surely not within the province of the police to investigate into a-Report (F.I.R.) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.-Therefore, it was held that if the ingredients of the offence are not brought out even in the F.I.R. then the Court has jurisdiction to quash the proceedings. Therefore, the matter rests here.

8. I shall consider at the appropriate stage the arguments of Mr. Barot and the counter arguments of Mr. J. M. Panchal pertaining to this aspect as to where the allegations made in the complaint bring out the ingredients of a criminal offence.

9. First of all I will consider the reliance of Mr. Barot on Articles 21, 22(1) and also 22(5) of the Constitution of India. Under Article 21 of the Constitution, no person is to be deprived of his life or personal liberty except according to procedure established by law. In order to support this right, Mr. Barot has relied on the provisions of Section 50(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') to which reference will be made presently. But reliance is on Article 22(1) of the Constitution, which provides 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. I have supplied emphasis to the word 'informed' because it is argued by Mr. Barot that this information must be communicated in writing. In order to show how this interpretation is plausible, he relied on Article 22(5) of the Constitution which provides:

22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Reliance is placed on Article 22(5) of the Constitution of India because the wording of Section 50(1) of the Code requires communication. Section 50(1) of the Code is as follows:

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

Sub-section (2) of Section 50 of the Code refers to the provision of bail with which we are not very much concerned in this petition.

10. Now, it is the contention of Mr. Barot that though the heading of Section 50 of the Code refers to 'Person arrested to be informed of grounds of arrest' in the body of the section it has been stated that such a person shall forthwith be communicated the full particulars of the offence for which he is arrested. Therefore, according to him, this word 'communicate' should be interpreted in the light of Article 22(5) of the Constitution of India and on the strength of the decisions under that Article.

11. I shall be referring to some of the rulings because most of the rulings cited by Mr. Barot have referred, to this aspect. But it cannot be overlooked that provision of Article 22(5) of the Constitution is pertaining to detention in pursuance of an order made under any law providing for preventive detention. It cannot be gainsaid that preventive detention takes out liberty of an individual without any trial. An Executive is authorised by the Preventive Detention Act to detain a person by following the procedure provided under Articles 22(4), 22(5), etc. of the Constitution, without any trial.

12. The question to be considered is whether those aspects can be imported into the provisions of Section 50(1) of the Code where on a mere allegation in the F.I.R. a person is arrested, and then according to Sub-section (2) of Section 50 of the Code where a Police Officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. While, the provisions of Section 56 of the Code provide that a police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions contained in the Code as to bail, take or send the person arrested before a magistrate having jurisdiction in the case, or before the officer in charge of a police station. Section 57 Of the Code provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167 of the Code, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

13. Therefore, in normal cases, immediately after the arrest the accused person is to be produced before the Magistrate if he is arrested without warrant, and in no case it should be delayed beyond 24 hours. Therefore, there is a provision in the Code for intervention of the Court when a person is arrested without warrant. It means that after a person is so arrested under Section 56 of the Code he has a privilege of taking recourse to the provisions contained in the Code as to bail, and the Magistrate also has to consider whether custody with the police of the said person should be continued or he should be sent to judicial custody or released on bail. So here is not a detention without inquiry where statutory provisions of Article 22(5) of the Constitution of India for detention of a person in pursuance of an order made under any law providing for preventive detention would be applicable.

14. All the rulings cited by Mr. Barot under Article 22(5) of the Constitution pertaining to the information in writing, are with reference to the law providing for preventive detention. Still, however, I shall refer to some of the important rulings which, I think, I should discuss.

15. In Re: Madhu Limaye A.I.R. 1969 Supreme Court 1014, he was of course arrested and for the grounds of arrest it was stated that the arrested persons were merely told that they had been arrested under the section which were bailable. On this consideration, the Supreme Court observed that it remains to be seen whether any proper cause has been shown in the return for declining the prayer of Madhu Limaye and other arrested persons for releasing them on bail on the ground that there was non-compliance with the provisions of Article 22(1) of the Constitution. Now, in that case, they continued in custody beyond the period of 24 hours. The Supreme Court considered that if their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith. Apparently, the facts clearly show that when they were arrested, they were not told for what they were being arrested. In the instant case, the case against the petitioners is very clear, and as I have discussed earlier, the facts show that they were arrested for a particular offence. The question to be considered will be whether they were informed of it or the grounds of arrest were communicated to them, and that will be the subject-matter of discussion at a later stage.

16. Reference is made to various rulings of the Supreme Court to show what is the meaning of word 'communicate' in Article 22(5) of the Constitution of India. An attempt is made to show that this word 'communicate' in Section 50(1) of the Code has also the same connotation. In order to appreciate the dispute from the facts it is necessary to consider what are the averments in the petition pertaining to this aspect and what is the reply.

17. Mr. J.M. Panchal for the State submitted to me that throughout the petition except saying that conditions of Section 50(1) of the Code and Articles 21, 22(1) & 22(5) of the Constitution are breached, no specific allegation is made about the information so that it could be replied effectively. In para 18 of the petition it has been submitted that it was necessary for the Investigating Officer to collect necessary data about the age of the complainant and whatever data was collected by the Investigating Officer so far on this point on the strength of which they take the complainant to be a minor below 16 years of age was not made known to the petitioners at the time of their arrest for an offence under Section 363 of the Indian Penal Code notwithstanding the fact that it was obligatory for the police officer arresting the petitioners without warrant to do so as per the mandatory requirement of Section 50(1) of the Code as well as Article 22(1) of the Constitution.

18. These contentions are considered only to be rejected outright because Section 50(1) of the Code cannot require a police officer to inform a person arrested of the material which he has collected. The requirement is not the basis on which the Investigating Officer forms an opinion that an offence is made out, but he has to inform full particulars of the offence for which such person is arrested. Those full particulars do not mean that information should be pertaining to how they believe those particulars to be correct, what is the data collected by them, or why they believe the evidence to be true, etc. It will be a matter for the Investigating Officer to consider whether to submit a charge-sheet or not, and after the charge-sheet is submitted, to furnish all the documents to the accused person making it possible for him to effectively, defend himself during the trial, and the Court trying the case would consider whether there is sufficient evidence either to frame the charge or convict the accused. But by no stretch of imagination it can be said that Article 22(1) of the Constitution or Section 50(1) of the Code anticipate that entire material should be collected by the Investigating Officer before arresting a person under the normal law and circumstances, and then only he should arrest a person and put forth the entire material before the arrested person. This argument is too fantastic to be accepted as that would be making the authority of police to arrest a person without warrant in such cases and also other provisions of the Code redundant, which require the police to collect, after arrest the data, material documents, statements, etc., and then to submit a charge-sheet, and alongwith the charge-sheet to send all the documents and evidence collected. In order to appreciate this I shall make reference to those provisions.

19. Under Section 157 of the Code, procedure for investigation is given. First part of Sub-section (1) of Section 157 of the Code provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence, which he is empowered under Section 156 of the Code to investigate, then he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report, and then he can 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. This is merely on suspicion. Then provisions pertaining to examination of witnesses by police, and statements of witnesses recorded by the police, are mentioned in Sections 161 and 162 of the Code. Section 170 of the Code provides that if, upon an investigation it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial. Then provisions are made that alongwith that report any weapon or other article which it may be necessary to produce before Magistrate shall have to be sent. Section 173(2) of the Code requires that after the investigation is completed, the officer in charge of the police station has to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government wherein details are required to be mentioned. What details are to be filled in the said form are given in that sub-section. Under Sub-section (5) of Section 173 of the Code, a police officer has to forward to the Magistrate along-with the report all documents or relevant extracts thereon on which the prosecution proposes to rely other than those already sent to the Magistrate during the investigation, and also the statements recorded under Section 161 of the Code of all the persons whom the prosecution proposes to examine as its witnesses. Sub-section (7) of Section 173 of the Code provides that where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5) of Section 173 of the Code. Under Section 207 of the Code, in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the various documents mentioned therein, meaning thereby, 'all the papers of investigation on which police have based the charge and proposed to lead evidence against the accused to prove the charge against the accused. These safeguards which are available in the Code cannot be ignored. These safeguards very categorically provide that before the accused is put to trial, he is furnished with all the documents; it is made known to him as to what is the evidence collected by the police against him; it is made known to him as to who are the persons who are going to depose against him; it is made known to him as to what those persons have stated before the police. Can it be said that in such a case it will be necessary for the police to arrest the accused only after collecting all the material on which the police basis its suspicion or allegation ?

20. As considered earlier, under Section 157 of the Code, even for suspicion police have an authority to arrest an offender. Whether that suspicion ripens into an offence triable by the Court can be determined by the police on investigation. Even after investigation if the police comes to the conclusion, that the police has been able to collect material to put up a case triable by the Court, even then the Court trying the case would consider those materials to come to a conclusion whether the charge should be framed or not, and if the charge is framed, at the trial the accused is furnished an opportunity to lead evidence, and the Court shall then consider whether the accused person should be convicted or acquitted. Only if conviction is there, then there is detention in a prison on proved facts. Till then the liberty of a man is not jeopardised. So, here is a full scope to the accused persons to know the evidence brought out against them by the prosecution even before the trial. Therefore, there provisions of the Code can never be equated with the provisions of Articles 22(4) or 22(5) of the Constitution where the question of detention without trial only on the satisfaction of the Executive is there.

21. That apart, I shall consider the allegations made in the petition pertaining to Article 22(1) of the Constitution and Section 50(1) of the Code. In paragraph 18 of the petition, it is nowhere stated in specific words that the petitioners were not informed of the grounds of their arrest. This paragraph 18 of the petition has been replied, fry police Sub-Inspector Mr. J. M. Puwar of Kareli Bang Police Station, Baroda, in his affidavit in-reply in paragraph 17, wherein it has been stated that the interpretations put by the petitioners on the provisions of Section 50 of the Code are not correct and the arrest of the petitioners is not violative of any statutory provisions of Section 50(1) of the Code and/ or Article 22(1) of the Constitution of India. This was done because no specific allegation was made. There is also another affidavit filed by Mr. V.M. Bhuria, Police Inspector Incharge of Kareli Baug Station, Baroda City. He has stated in paragraph 3 that on perusal of the record and. information gathered from Mr. J. M. Puwar, Police Sub-Inspector, Kareli Baug Police Station, Baroda City, it was known that before the accused were arrested and at the time of arrest, the accused were explained the particulars and grounds for which they were going to be arrested as required-under Section 50 of the Code, and thereafter arrest was made. I am told at the Bar that on the very day of the arrest, the accused were interrogated by the police pertaining to the allegations against them made by the complainant and also various other aspects. So, it is the submission that the accused were informed of the charges against them and the grounds for which they were being arrested.

22. Mr. Barot submitted that even if it is taken for granted what Police Inspector Mr. V.M. Bhuria has stated to be true, the requirement of 'communicating' is not fulfilled and, therefore, the arrest of the petitioners is violative of the fundamental rights and, therefore the proceedings against them should be quashed. In support of his arguments, as stated earlier. Mr. Barot has relied on various decisions which in fact pertain to the Detention Acts. Still, however, I shall refer to some important aspects from some of the rulings cited by him. I should also observe that Mr. Barot has relied on these rulings in also order to canvass proper meaning of the words 'grounds for such arrest', according to him.

23. Now, it should be noted that in Article 22(1) of the Constitution it has been stated 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., while in Article 22(5) of the Constitution also there is word 'grounds', and that also mentions that the authority making the order to detain a person shall, as soon as may be, communicate to such person 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 Code is concerned, there are two parts. First part is that if a person is arrested by a police officer without warrant, then he is to be forthwith communicated full particulars of the offence for which he is arrested. Secondly, if there is no offence, then other grounds for such arrest are to be communicated. So, if there is an offence, then there is no question of grounds, but full particulars have to be communicated. If arrest is only on (other) the grounds, then the grounds are to be mentioned. Therefore, importing of word 'grounds' so far as this case is concerned, to my mind does not arise. At any rate, I shall consider how these grounds are interpreted in cases pertaining to Article 22(5) of the Constitution, and whether that meaning of to communicate or 'grounds' could be imported into the arrest of a person for a criminal offence.

24. In Khudiram Das v. The State of West Bengal : [1975]2SCR832 , the Supreme Court had an occasion to consider the case of a person detained under the Maintenance of Internal Security Act, 1971. It is observed therein that the 'grounds' under Article 22(5) mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. It should be noted that when a person is being detained, he has no scope to be tried. His personal liberty is curtailed without any trial on the satisfaction of an executive authority. In such cases the executive authority like the District Magistrate reaches his subjective satisfaction and, therefore, what were the grounds on the strength of which he reached to that subjective satisfaction would be the relevant grounds which should be communicated to the detenue so that he can make an effective representation against his detention. Here is not a case when there is scope for a person arrested under Section 50(1) of the Code to request the Magistrate to release him on bail, to request the Magistrate not to frame the charge against him or even after trial request the Magistrate to acquit him, etc. The word 'grounds' appearing in Article 22(5) of the Constitution was interpreted by the Supreme Court in that particular manner mainly because of two-fold reasons, as considered in para 6 of Khudiram's case (supra). It is observed therein that in the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenue, so that, not only the detenue may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and peripheral it may be, and secondly, the detenue has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation? If the grounds of detention are not communicated, then the opportunity of making a representation would be rendered illusory. Therefore, these provisions enable a detenu to make an effective representation. If on the strength of the grounds the detenu has to make representation, then he should be communicated all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention. These grounds are to be communicated in such a way that they must be sufficient to enable him to make a representation which on being considered may give relief to him. Cases of persons who are detained under the preventive Detention Act are on a different footing then of the persons who are arrested under the provisions of the Code. As considered earlier, there is a scope for full trial and the accused has an opportunity to approach the Court firstly at the stage of getting bail, secondly at the stage of framing the charge and thirdly at the stage of final order of conviction or acquittal. Under the Preventive Detention Act after the subjective satisfaction of the detaining authority the person detained has only scope to make representation against the proposed detention, and if that is not considered, the detenu has to invoke the power of judicial review, which is limited and peripheral. Therefore, in such cases Courts and also the provisions of the Constitution afford sufficient safeguards so that a person cannot be detained without trial only at the sweet will of an executive authority. In the Code that provision is not there and, therefore, the emphasis put on the words 'communicate' and 'grounds' in detention actions cannot be imported into the arrest of a person under the Code.

25. Now, I shall refer to the decision of the Supreme Court in Lallubhai Jogibhai Patel v. Union of India 1981 Criminal Law Journal 288. This Lallubhai Jogibhai was arrested under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (COFEPOSA) which also pertains to detention. In paragraph 20, the Supreme Court has considered what is meant by 'communication' and 'grounds'. In that case the detenu did not know English. The grounds of detention served on the detenu were drawn up in English. But one Police Inspector Mr. C. L. Antali, who served the grounds of detention on the detenu filed an affidavit stating that he had fully explained the ground-of detention in Gujarati to the detenu. The Supreme Court considered that was not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be 'communicated' to the detenu, The Supreme Court further held that 'communicate' is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands (emphasis supplied). Now, this much can apparently help Mr. Barot, but the purpose of making these observations is clarified further, and that is, the whole purpose of communicating, the 'grounds' to the detenu is to enable him to make a purposeful and effective representation. The Supreme Court rightly considered that if the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands then the purpose is not served, and the constitutional mandate in Article 22(5) is infringed. These observations were made considering the specific provisions of Article.. 22(5) of the Constitution in cases where personal liberty of an individual was to be curtailed merely by an executive order without trial. In such cases where provisions are made for a detenu to make representation against the order, that representation cannot be made unless he has grounds in writing before him. There may be various grounds and if he has to make effective representation, it would not be proper to consider that he should be capable enough to remember all the grounds in his mind and then make an effective representation. This is more so because under Article 22(5) of the Constitution grounds are to be communicated to the detenu and he has to be afforded an opportunity of making a representation against the order. There is no question of making any representation under Section 50(1) of the Code. But under the Preventive Detention Act at least opportunity has to be afforded under Article 22(5) of the Constitution to a person to make representation against the order and, therefore, it is necessary that grounds must be available to him whenever he wants to make an effective written representation and, therefore, grounds must be written.

26. Mr. Barot came out with an argument that even though Section 50(1) of the Code is there, and an opportunity or inquiry as provided under the Code would be available, still, however, once a person is arrested without warrant and later on if he is released on bail, he has only circumscribed rights so far as personal liberty is concerned, because he has to attend the Court on every occasion when he is directed by the Court to attend, and on failure of that attendance a sword is always hanging on him of being arrested or put in jail by forfeiture of surety bond. Therefore, according to him, this is also an impending abridgement of personal liberty and hence provisions of Section 50(1) of the Code should be considered on par with the provisions of Article 22(5) of the Constitution so far as question of arrest is concerned. I am not in agreement with this argument advanced by Mr. Barot. After the arrest a person is to be produced before a Magistrate as early as possible or at least within 24 hours. Thereafter, jurisdiction of the Magistrate starts as to what to do with the person arrested, and that will few the judicial discretion of a competent authority, taking away any arbitrariness of an executive or a police officer. Therefore, merely because after arrest a person is to be released on bail and he has to attend the Court whenever called for, would not be a case on par with detention where 'communication' or 'grounds' as envisaged in Article 22(5) of the Constitution would be available to him specially because he is arrested after making known for what he is being arrested orally or, in this case, as stated at the Bar, by interrogating the accused, and making known to him the allegations against him. I have already considered the facts of this case. Can it be said that police arrested the persons without telling them that they have taken away a young boy, emasculated his male organ and made him an eunuch and, therefore, there is complaint against them? Can it be said that such complaint would not be communicating anything to the accused who are arrested Is it a case like the case of Madhu Limaye (Supra) where the persons were arrested without informing them anything except that they were arrested in a bailable offence? Cases have their own characteristics and in all cases principles propounded in peculiar types of cases cannot be applied.

27. My attention is drawn to the decision of the Gauhati High Court in Ajitkumar Sarmah v. State of Assam 1976 Criminal Law Journal 1303. In that case it was held that Section 50 of the Code 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 case of such affidavit the police diary cannot be perused to verify the police officer's claim of oral communication of such particulars. I must emphasise that throughout the petition on oath it is never stated that the petitioners were not communicated the grounds of their arrest even orally. Entire arguments are advanced on the word 'communicate' to show that communication must be in writing, and because there is nothing on the record that any information was conveyed to the accused in writing, there is breach of Section 50(1) of the Code. This is too limited a proposition to consider the ward 'communicate' in Section 50(1) of the Code. According to me this is too restricted meaning. In the aforesaid case of Gauhati High Court, the question pertained to the arrest of Ex-President of the Assam College Teachers' Association, and Head of the Department of Political Science of the Handique Girl's College, Gauhati. At night he was arrested, and when he was to be arrested he demanded warrant, but there was no warrant. It was stated by the police officers (as averred in the affidavit) 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, meaning thereby, all throughout he was not even orally informed as to why be was arrested, and on the contrary statement was made that he was not to be arrested. That is not the case here.

28. The Calcutta High Court in Govind Prasad v. The State of West Bengal 1975 Criminal Law Journal 1249, had also an occasion to consider the provisions of Section 50 of the Code. In that case the accused was arrested without warrant in Calcutta by the Ludhiana Police with the help of Calcutta Police. When the arrested person applied to the Magistrate at Calcutta for bail, the Magistrate refused the Bail. The Calcutta High Court held that the Magistrate had power to grant bail under the new Code as a Magistrate having jurisdiction over the place of arrest has jurisdiction to release the person on bail. While considering these facts, the Calcutta High Court observed that 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, and that section confers a valuable right and a non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. There can be no two opinions about this aspect. But the provisions of law have to be applied to each case on its peculiar facts. That would not mean that communication should be in writing and there would not be any communication even if the accused knew what they have done or were informed what they have done and for what they have been arrested.

29. It should be noted that under ordinary law procedure under the Code is to be followed. That procedure requires the investigating officer to send the report or first information report immediately to the Court and within 24 hours the person arrested is to be produced before the Magistrate. The F.I.R. at least prima facie gives out the facts pertaining to the offence in which the accused is involved. It is argued by Mr. Barot that a copy of the F.I.R. is never given to the accused. That may be, but as stated earlier, interrogation is made. At that time accused must have been informed about the allegations against them. It is not the case of the petitioners that they were never informed the grounds orally or the reasons of their arrest. In view of this, challenge to the action of the police on the strength of Article 22(1) or Article 22(5) of the Constitution of India or Section 50(1) of the Code does not hold good.

30. On this point I must also make a mention of the decision of this Court. (D. H. Shukia, J.) in Soni Natverlal Prabhudas v. State of Gujarat Special Criminal Application No. 220 of 1982, decided on 31st January : (1983)2GLR945 , The said petition was also filed and argued by Mr. N. K. Barot, who has argued this matter. Same averments were raised and the decisions of the Calcutta High Court and the Gauhati High Court, referred to by me above were cited. Shukia, J. on hearing the matter came to the same conclusion to which I have come above. He considered both the decisions and came to the conclusion that they did not help the case of the petitioners before him. He then appreciated the last paragraph of the decision of the Gauhati High Court wherein a request was made to quash the proceedings. Though the Gauhati High Court came to the conclusion that the arrest of the petitioner (before it) was not in accordance with law, so far as the prayer for quashing the proceedings was concerned, it was observed that that was not the stage at which the case could be quashed. It was further observed that it is possible that if there be no evidence against the petitioner, the case may end in a final report, of if there be a charge-sheet unwarranted by material, the petitioner can approach an appropriate Court at the appropriate time for quashing the case. But even on those facts the case was not quashed. This I am observing because contention of Mr. Barot is that the proceedings should be quashed. In the question of Section 50(1) of the Code, before Shukla, J. it was found that the accused was produced before the Magistrate. He consulted an 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 Code. Practically same things have happened here. The present petitioners were produced before the Magistrate, bail applications were argued and granted, and no such point was raised. Mr. Barot is right that he was not representing the petitioners at that stage. But that would not make any change in the position of facts, meaning thereby, whether they were informed of what offence they have committed, if they did not know for what they were arrested, they would have made a grievance immediately. Only because they did, not know the provisions of law, that would not make any difference about the fact that the prosecution had informed them of the offence they have committed. After having appreciated the decisions cited and arguments advanced, Shukla, J. in the above referred decision held 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 Code that the communication of full particulars of the offence for which the accused is arrested should be made or other grounds for such arrest should be necessarily conveyed to him in writing. Shukla, J. also held that requirements of Article 22(1) and Article 22 (5) of the Constitution are laid in relation to different contingencies, and then it was considered that Articles 22(4) and 22(5) of the Constitution were required to be considered in the arena of Preventive Detention Act, as held by me. I am in full agreement with the observations of Shukla, J. and I do not find anything to differ from the conclusion he has arrived at. Therefore, so far as this point is concerned, it is settled.

31. Reliance was placed on the decision of the Orissa High Court in Mangal Hemrum v. State of Orissa 1982 Criminal Law Journal 687, wherein, in paragraph 12, it was considered that an order of detention has to pass the test of Article 21 of the Constitution every moment of, its existence. It is the obligation of the Magistrate and every other authority to justify the detention by reference to law. Me who infringes the basic right must have the sanction for it. So it follows that the Magistrate must be in a position to justify to the accused, the latter's detention and it is not for the accused to show to the Magistrate that his detention is illegal. These observations were made with reference to the provisions of Sections 167(2) and 437 of the Code. Under Section 167(2) of the Code an accused person is entitled to be released on bail if he is ready to offer bail the moment the period of 60 or 90 days as required under the section is complete and charge-sheet is not filed, meaning thereby, investigation is not completed. Under these circumstances, it was held by the Orissa High Court that it is not necessary for the accused to give application and he should be released on bail because that detention would be without any reason and, therefore, violative of Article 21 of the Constitution, because provision of law does not permit detention. Here is not a case of like nature because the detention or arrest whatever was, was made by the Police who, according to the affidavit, informed the petitioners as to what the offence against them was. The charge sheet could not be filed in the instant case due only to the stay of this Court in this matter granted by Majmudar, J. while issuing Rule.

32. So, this takes out the first two grounds advanced by Mr. Barot.

33. The third ground is that the Baroda Court has no jurisdiction to try petitioner No. 2 and original accused Nos. 3 to 5. In my view, this ground would not be available to Mr. Barot in view of the decision of this Court (S. B. Majmudar, J.) in Lilade Sitade v. State 23(2) Gujarat Law Reporter 734 - Special Criminal Application No. 1171 of 1982 (supra). After having considered various arguments advanced, Majmudar, J. considered that the common intention of accused No. I (petitioner No. 1 here) in enticing the complainant was to take him to their fold. It was considered in paragraph 8 that accused Nos. 1 and 2 (present petitioners) at Baroda are alleged to have kidnapped the complainant with a view to ultimately getting him emasculated and to bring him into their fold of professional beggers. Mr. Barot has taken exception to this finding, that in the complaint it is not stated anywhere that right from the beginning it was the intention of accused Nos. 1 and 2 or at least accused No. 1 to take the complainant to their fold. It is really surprising grievance made by Mr. Barot. What was the earthly reason for petitioner No. 1 to tempt the complainant by offering him a good job except to take him into their fold? Apart from that, the circumstances clearly show that immediately after the complainant was taken by accused No. I, he was first taken by accused Nos. 1 & 2 to the Akhada of Eunuchs, showing the immediate desire of these two accused-petitioners of taking the complainant into their fold. The further action of taking the complainant to Kalol and castrating him at least prima facie establishes that this was the only intention in tempting the complainant and none else. Majmudar, J. in paragraph 8 of the aforesaid decision, considering the part played by all the accused held that the role played by accused Nos. 4 and 5 represents the role of persons who have allegedly acted as limbs of other accused who were eunuchs According to him, therefore, it must prima facie be held that the offence of emasculation alleged to have been committed at Kalol in Mehsana District was part and parcel of the comprehensive transaction of kidnapping and castrating the concerned victim with a view to making him a eunuch who could be a useful addition to their class of professional beggers. So, the contention of jurisdiction was already decided. Mr. Barot wanted me to come to a different conclusion from the one arrived at by Majumdar, J., and if I come to a different conclusion he requested that I should refer the matter to larger Bench. But I am in full agreement with the findings of Majmudar, J. and, therefore, I do not find any necessity to make a reference to a larger Bench, nor do I find that this point now requires any elaborate discussion on my part.

34. Point No. 4- the joint trial of accused No. 1 with other accused is not permissible - is also answered by the judgment. Of course, an argument is advanced on a very ingenous ground. It is a patent fact that offence of kidnapping is not a continuous offence, and the moment a person is taken out of the lawful guardianship, the matter is over. Therefore, it is argued that if at all it is accepted for the time being as a part of argument that accused No. 1 kidnapped the complainant, which, of course, is a question argued at length by Mr. Barot, as not to be kidnapping; then as the offence of kidnapping was over, accused No. 1 should be tried separately because there is nothing in common so far as other accused are concerned. Now, one thing cannot be for-gotten that after the complainant was allegedly tempted by petitioner No. 1 to leave the hotel and to go for better service, which was offered by petitioner No. I, he was taken to Akota. Thereafter it is the case that petitioner No. 2 went to the complainant at the house of petitioner No. 1 in Akota. It is also the case of the complainant that both the petitioners Nos. 1 and 2 told him that they would give him a better service in a hotel, and so saying, he was taken to the Akhada of Eunuchs. Now, these are the allegations. Whether these allegations on evidence would make out continuance of the offence or not would be a matter to be considered by the Court on appreciation of evidence. But the allegations show that both the petitioners tempted or lured the complainant and took him to the Akhada of Eunuchs. At this stage I do not make any observation as to whether the second action also would be kidnapping, but agreeing with Mr. Barot that one who removes a person from the custody of lawful guardian is only a kidnapper; after kidnapping is over, even though that person kidnapped may be a minor, abduction would start, and Courts have held that abduction is a continuing offence with which Mr. Barot has no dispute.

35. The Allahabad High Court in Emperor v. Nanhua Dhimar A.I.R. 1931 Allahabad 55, had an occasion to consider a case where a couple husband and wife- enticed a 12 year girl to leave her guardian from Moradabad in their company with intent that she may be or knowing that it is likely that she would be forced or seduced to illicit inter-course with another person. Later on they were joined by D, B and K, and removed the girl from place to place subsequently selling her. All the accused were tried together at one place, i. e. Moradabad. It should be noted that the girl was kidnapped from Moradabad by Nanhua Ahyria and his wife who enticed the girl. At that time she was staying with her parents at Moradabad. After taking the girl from Moradabad, Nanhua and his wife took her to Hapur where they were joined by Nanhua Dhimar and Bihu Chamar. Then Nanhua Ahyria and others took the girl to Hafizabad. There they were joined by one Kesri Chamar, resident of Hapur. From Hafizabad, all the five persons went to Rampur. There they sold the girl to one Barkat Ram. They were tried before the Sessions Judge at Moradabad, who convicted the couple from Moradabad and referred the cases of other accused to the High Court with a recommendation that the commitment of those persons be quashed as no offence was committed by them within the jurisdiction of the Court of Sessions at Moradabad. The Allahabad High Court came to the conclusion that the Moradabad Magistrate had jurisdiction to try the cases of other accused also. Under these facts of the case the Allahabad High Court, observed that the offence of kidnapping from lawful guardianship is not a continuing offence. As soon as the minor is actually removed from the custody of his or her guardian, the offence is committed. The offence is not a continuing one as long as the minor is kept out of guardianship, but unlike kidnapping, abduction is a continuing offence, for which some decisions were relied on. While considering the provisions of Section 362 and 366-A of the Indian Penal Code, the Allahabad High Court considered that there may be abduction without the removal of a person from lawful guardianship, and then considered that Sections 362 and 366-A of the Indian Penal Code have some salient common ingredients, and that an offence under Section 366-A is a continuing offence. This decision shows that the moment kidnapping ends, abduction starts, and abduction is a continuing offence and, therefore, it was considered that those persons who kidnapped and also these persons who joined them later on and sold the girl to somebody can be tried jointly at the place where the actual act of kidnapping took place. Mr. Barot wanted to make a fine distinction so far as kidnapping and abetment is concerned, that the persons can be said to have committed the offence of kidnapping if there is unity of minds prior to kidnapping. That point for the time being is not disputable when the facts of the Allahabad case clearly show that so far as the facts of this case are concerned, the Court at Baroda would have jurisdiction to try the case and all the persons can be tried in the same case in that Court. In Allahabad case, girl Ram Kali was kidnapped from Moradabad, taken to Hapur where other accused, met. Then she was taken to Hafizabad where she was sold. The part played by all the accused finally at Hafizabad was connected to early kidnapping and later on considered as abduction and all of them were ordered to be tried together by Moradabad Court from where the act of kidnapping took place. In view of this, I am of the view that Allahabad judgment is quite correct and the objection of Mr. Barot that petitioner No. 2 cannot be tried with accused Nos. 3 to 5 is not justified, and also the contention that the joint trial of accused No. 1 with other accused is not permissible also has no force.

36. Then comes the question about quashing the proceedings. It is the case of Mr. Barot that the averments made in the complaint do not make out any ingredient of offence with which petitioner No. I is charged. The case of Mr. Barot is that there is no kidnapping. In order to support his case that there is no kidnapping, Mr. Barot referred to the averments made in the complaint. I have already referred to those averments and, therefore, I do not repeat them. But it is the contention of Mr. Barot that those averments do not anywhere show that the complainant was taken away from any lawful guardianship. According to him, under Section 361 of the Indian Penal Code, 'Kidnapping from lawful guardianship' is defined. It reads.

361. Whoever takes on entices any minor under sixteen years or age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the. keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

It is, therefore, the submission of Mr. Barot that unless the prosecution proves that the complainant was under the lawful guardianship of some body, there would not be kidnapping. It is his case that according to the averments in the complaint itself, the complainant had left Chhota Udepur and was serving at Baroda of his own, and he was a master of himself without any guardian to look after him. Now these are the arguments which can be advanced after evidence is led because as considered earlier, it was the case of the complainant in the complaint that for about one year he stayed in station area. What that station area is, is still not clear. Secondly, he was surving at the canteen in Baroda and there must be somebody to look after him and his welfare.

37. In Thakorlal D. Vadgame v. State of Gujarat : 1973CriLJ1541 , the Supreme Court appreciated the words 'whoever takes or entices any minor' in Section 361 of the Indian Penal Code, and observed as to what it actually means. According to the Supreme Court the word 'takes' does not necessarily connote taking by force and it is not confined to use of force, actual or constructive. These words merely mean 'to cause to go', 'to escort' or 'to get into possession'. We are not concerned with these aspects so far as the present petition is concerned, because it is not indispute that the complainant was taken in alurement of getting a good job. The question to be considered is whether the complainant was under the care and custody of any guardian when he was taken. According to Mr. Barot, there was no guardian and, therefore, there is no 'taking' and consequently no kidnapping.

38. In this judgment of Thakorlal Vadgama the Supreme Court while considering the decision in State of Haryana v. Raja Ram : 1973CriLJ651 so far as the word 'takes' is concerned, observed that the gravemen of this offence (under Section 361 of the Indian Penal Code) lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guargian without the consent of such guardian. These words, according to the Supreme Court, are significant. The use of the word 'keeping' in the context connotes the idea of charge, protection, maintenance and control : further the guargian's charge and control appears to be competible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises. By this the Supreme Court answered the allegations of the persons like the present petitioners who say that once a minor is moving here and there, though he might have intention to go back to the guardian and might have come temporarily with his accord for service at Baroda, he cannot be said to be in keeping of any guardian. Therefore, the Supreme Court has considered the connotation of the word 'keeping'. It may be a matter of evidence on evidence as to what were the circumstances under which the complainant left Chhota Udepur and came to Baroda for service and what were the ties which continued between him had his family members at Chhota Udepur. The Supreme Court has specifically observed that the guardian's charge and control appears to be compatible with the independence of action and movement in the minor. Mr. Barot suggested that once the movements of a minor are independent, then they would he incompatible with the control of the guardian so as to bring in the element of 'keeping'. This very aspect has been considered by the Supreme Court and negatived holding that both are compatible with each other. If the argument of Mr. Barot is accepted, then many hutment dwellers or persons in rags who send their children somewhere, even outside their own village or outside their province cannot be said to be the guardian, making such minors available for being taken anywhere without any protection of law. If that is the idea to be imported, then there will be no safety of minors throughout the country, because unfortunately, ours is a country where young children are required to undergo drudgery of service and/or slavery. Should the protection of provisions of law of kidnapping be denied to them even though they might have continued their links with their parents at their place even though they serve at another place Therefore, the enlarged notion about the word 'keeping' accepted by the Supreme Court in case of Thakorlal Vadgana (supra) can be applied with equal force to the present and such other cases. Whether ultimately that was really a 'keeping' of guardianship or not, would be a matter to be considered on evidence, and it cannot be gone into at this stage.

39. Here, at least there is no case of the minor (complainant) abandoning the protection of his guardian permanently. Therefore, at this stage it cannot be said that there is no prima facie case for kidnapping. It was argued that so far as case under Section 326 of the Indian Penal Code was concerned, it was an Kalol and at Baroda case was only of kidnapping by accused No. 1 and then accused Nos. 1 and 2 took the complainant to the Akhada of Eiinuohs in Baroda. But so far as further aspects are concerned, accused No. 1 hid never, taken part because it was only accused No. 2 who had gone to Kalol with the complainant. Therefore, according to Mr. Barot, there is no connection between the act of petitioners Nos. 1 and 2 and 2 to 5. Therefore, petitioners Nos. 1 and 2 cannot be tried together, and petitioner No. 2 cannot be joined as an a better to petitioner No. 1 as once the complainant is taken out of the lawful guardianship, the offence of kidnapping is over, and it is not a continuous offence. I have considered this aspect earlier on consideration of abduction. But it will be worthwhile to refer to various sections of the Indian Penal Code pertaining to the offences of kidnapping and abduction. I am observing this because though police may put any section on the material available, on the strength of the evidence collected by the police, it is the function of the Magistrate to frame the charge; it will be the duty of the prosecution to assist the Court in framing proper charge; and also it will be the duty of the defence to assist the Court in the same way and then it is the duty of the Magistrate to hear the parties and consider the various documents, and then frame the charge. Therefore, whatever charge mentioned by the police would not be a charge with which ultimately the accused would betried and, therefore, it cannot be said that because a particular charge would not fit in, the proceedings should be quashed, because this is not a case where prima facie no offence is there. What would be the offence would be a matter to be decided by the Magistrate framing the charge on evidence collected by the police.

40. Section 363 of the Indian Penal Code merely punishes 'kidnapping', while Section 363-A punishes kidnapping or maiming a minor for purpose of begging. Whether this castrating is a type of maiming for the purpose of begging or not will be a matter to be considered on evidence, but the fact remains that the complainant was made eunuch just for the purpose of begging, and it is his clear case in the complaint that he had collected an amount of Rs. 5,000/- out of begging. It is the allegation of the complainant himself that he had remained unconscious for six days after the act of castration. This was such a dangerous act which would have ultimately resulted in death. Therefore, the consideration whether offence under Section 364 of the Indian Penal Code is committed, or the offence under Section 365 of the Indian Penal Code of kidnapping or abducting with intent secretly and wrongfully to confine a person is committed, or the offence under Section 367 of the Indian Penal Code about kidnapping or abducting in order to subject person to grievous hurt, slavery, etc., is committed, will be a matter to be decided by the learned Magistrate on the evidence collected by the police before framing the charge. This is a matter of disputed questions of facts which are to be resolved. For the time being question of fact remains that the complainant was lured by petitioner No. I, taken to his house, where petitioner No. 2 came, and both, petitioners Nos. 1 and 2, took the complainant to the Akhada of eunuchs at Baranpura in Baroda from where he was taken to Kalol where the act of castrating was done and, therefore, it cannot be said that there is no criminal offence at all and, therefore, arrest or release on bail of the petitioners can not be said to be so patently illegal as to be interfered by this Court in a writ petition under Articles 226 and 227 of the Constitution, engulfing the breach of constitutional rights. In fact, there is no breach of any fundamental rights. There is no breach of any provision of the Code and, therefore, the grievance of the petitioners is not justified.

41. Before parting with the judgment, I shall consider the request of Mr. Barot that his reference to the decision in State of Madhya Pradesh v. Shobharam AIR 1966 Supreme Court 1910, should be effectively dealt with. In that case there was complaint of trespass, registered against the respondents under Section 447 of the Indian Penal Code, who were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police. The case against the respondents was, thereafter put up before the Nyaya Panchayat, a Court established under the Madhya Bharat Panchayats Act, 1949. In that Court fresh bonds were executed by the sureties on behalf of the respondents to ensure their presence during the trial. The Nyaya Panchayat, after the trial, convicted and sentenced the respondents to a fine of Rs. 75/- each. That conviction was upheld by the Additional Sessions Judge, but the High Court set aside the conviction. Therefore, the State went in appeal to the Supreme Court. Challenge was also to Section 63 of 'the Panchayats Act which pro-vided that no legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute, case or proceeding pending before the Nyaya Panchayat. This was considered by the High Court as well as the Supreme Court as a breach of Article 22(1) of the Constitution and, therefore, said section was void in respect of persons who were arrested. No such position arises in the instant case and there is no question of any section of the Code or the Indian Penal Code being void. There is also no question of service of legal practitioner not being available. But Mr. Barot laid stress on the observations of the Supreme Court pertaining to Article 22(1) of the Constitution. In para 10, the Supreme Court considered that a question was mooted at the Bar that since at the trial the respondents were not under arrest having been released on execution of bonds, they were no longer entitled to the constitutional right conferred by Article 22(1). But Sarkar, C. J. who delivered the judgment for himself and Mudholkar, J., observed that as at present advised, they were not inclined to accede to that view, and considered it unnecessary to pursue the matter further in that case. Hidayattullah, J., in his judgment, considered the provisions of Articles 21 and 22 of the Constitution. He considered that Articles 21 and 22 in a sense go together and they cannot be treated as interrelated or interdependent. Article 21 prohibits arbitrary deprivation of life and personal liberty by laying down that these two possessions can only be taken away in accordance with procedure established by law. Article 21 does not indicate what that law must be nor does Article 22 say this. Article 22, no doubt, advances in a way the purpose of Article 21, when it specifies some guaranteed rights available to persons arrested or detained and lays down the manner in which persons detained preventively must be dealt with. These observations on the contrary affirm my views pertaining to distinction between ordinary arrest and arrest under the Preventive Detention Act, and only that arrest and trial should be according to the procedure established by law. It is of course true that in para 21, Hidayatullah, J has observed that there cannot be any different kinds of arrest, and arrest is arrest, whatever the reason. There can be no dispute about it. Once arrest is there, further proceedings will be according to the provisions concerned in the arrest, but the initial arrest is common, whether it is for detention or for an offence under the Indian Penal Code or any other provision of law. Only question of difference arises as to what should be the interpretation of requirement of law when the arrest is made. So far as Article 22(1) is concerned, a person is not to be arrested or detained in custody without being informed of the grounds for which such arrest is made. Section 50(1) of the Code says that he should be communicated full particulars of the offence for which he is arrested. Can it be said that by considering these two provisions of being informed and communicated, provisions of Article 22(5) of the Constitution be imported into them At the time of arrest. Article 22(1) of the Constitution comes, and Article 22(4) and 22(5) come after the stage of arrest when a person is to be detained in pursuance of an order made under law. When the arrest is made, he would be informed that he is to be detained and then arrested. But after the arrest is made, his detention continues, and provisions of Article 22(4) and Article 22(5) would come in play. Therefore, argument advanced by Mr. Barot would not be available to him. Even though we consider that arrest is arrest, either for detention or normal offence, it cannot be said that so far as provisions of Article 22(5) of the Constitution pertaining to detention are concerned, should be imported into this arrest also. In the aforesaid decision, in paragraph 34, Bachawat, J. speaking for himself and J. M. Shelat, J; has observed that both parts of claused) of Article 22 come into play as soon as any person is arrested. Clause (2) of Article 22 then goes on to give every person who is arrested and detained the right to be produced before a Magistrate within 24 hours and the right to freedom from detention beyond the said period without the authority of a Magistrate, etc. Therefore, even (his judgment makes a clear distinction of procedure and right so far as arrest simpliciter is concerned, and further proceeding on further detention is concerned. In view of this, I do not think that this decision would in any way help Mr. Barot.

In the result, the petition is dismissed. Rule is discharged. The stay granted against filing of the charge-sheet is vacated, but the framing of the charge by the learned Magistrate shall be done only after 20-6-1983.

42. Barot at this stage made an oral application to certify this case to be fit one for appeal to the Supreme Court. As per the rules of this Court, question of grant of certificate on such request will have to be resolved by a Division Bench. Therefore, consideration of the oral request of Mr. Barot may be entrusted to a Division Bench at the earliest. This would not debar the right of the petitioners to file a Letters Patent Appeal, if permissible according to law.


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