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K.M. Sundaram, Executive Committee Member, Communist Party of India, Tamil Nadu Committee Vs. Inspector-general of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1971)1MLJ196
AppellantK.M. Sundaram, Executive Committee Member, Communist Party of India, Tamil Nadu Committee
Respondentinspector-general of Police and ors.
Cases ReferredSee R. v. Halliday L.R.
Excerpt:
.....justifiable and warranted in law. 6. we have also perused the copies of the first information reports in respect of the arrests of respondents 2 to 10 for the offences mentioned in paragraph 12 of the counter-affidavit of the first respondent and we are satisfied that the respondents were arrested under section 120-b read with section 399 and sections 447, 426 and 506, indian penal code, and section 7(1) of the criminal law amendment act. we have carefully perused the first information reports produced before us, copies of which were given to the counsel for the petitioner in court and we are satisfied that there are sufficient materials for the police officers to cause the arrest of the respondents in respect of cognizable offence. on the other hand, we are satisfied that they have..........of the criminal law amendment act, 1932, declaring the offences under sections 188 and 506, indian penal code, as cognizable and non-bailable is unconstitutional and illegal and that the said notification was made with a view to curb their movement.4. the inspector-general of police, madras (first respondent herein) in his counter-affidavit stated that respondents 2 to 10 have been arrested for commission of specific cognizable offences and that the arrests were perfectly justifiable. he has given the details of the arrests of respondents 2 to 10 in paragraph 12 of his affidavit which is as follows:as regards the allegations in the averments in paragraph 12, this respondent submits as follows:respondent no. 2 was arrested in connection with karur town station cr. no. 1208 of 1970 under.....
Judgment:
ORDER

N. Krishnaswamy Reddy, J.

1. This petition has been filed under Article 226 of the Constitution and Section 491, Criminal Procedure Code, for issuing a writ of habeas corpus directing the first respondent, Inspector-General of Police, Madras, to produce respondents 2 to 10 before this Court and to direct them to be set at liberty on the ground that they have been illegally arrested and detained by the first respondent without any warrant or authority of law and that their detention in consequence of such unlawful arrest was illegal and improper.

2. The petitioner who claims to be the Executive Committee member, Communist Party of India, Tamil Nadu Committee filed an affidavit in support of this writ petition in which he stated that the Tamil Nadu Council of the Communist Party of India had decided to launch a movement throughout Tamil Nadu with regard to land grabbing and in pursuance of the said decision, the names of all those who would lead the peaceful Satyagraha in Tamil Nadu have been announced by the party and that this movement was scheduled to begin from 15th of August, 1970. It was further stated that the second respondent, Mr. M. Kalyanasundaram as the General Secretary of the Tamil Nadu Communist Counsel and respondents 3 to 10 as the members of the Tamil Nadu Secretariat of the Communist Party decided to participate in the movement scheduled to begin from 15th August, 1970 and that they were arrested by the first respondent and under his directions on the 8th and 9th of August, 1970 as a preventive measure without any warrant or authority of law. It was then stated that they have not been informed of the reasons for their arrest and detention and that there was no necessity to arrest the respondents as they were not intending to commit any cognizable offence. It was submitted that the movement initiated by the Communist Party of India is peaceful and symbolic and it is launched with a view to express their dissatisfaction with regard to the policy adopted by the Government of Tamil Nadu towards the land distribution to the poor under the Land Ceiling Act and that such movement and organisations are guaranteed by the Constitution of India and, therefore, the arrest and detention of respondents 2 to 10 was a grave violation of fundamental rights and. their detention was illegal and not bona fide. It was also stated that respondents 2 to 10 were not produced before a Magistrate after their arrest for remand.

3. It is further stated that the Notification issued by the Government of Tamil Nadu in the Extraordinary Gazette dated 3rd August, 1970, under Section 10 of the Criminal Law Amendment Act, 1932, declaring the offences under Sections 188 and 506, Indian Penal Code, as cognizable and non-bailable is unconstitutional and illegal and that the said Notification was made with a view to curb their movement.

4. The Inspector-General of Police, Madras (first respondent herein) in his counter-affidavit stated that respondents 2 to 10 have been arrested for commission of specific cognizable offences and that the arrests were perfectly justifiable. He has given the details of the arrests of respondents 2 to 10 in paragraph 12 of his affidavit which is as follows:

As regards the allegations in the averments in paragraph 12, this respondent submits as follows:

Respondent No. 2 was arrested in connection with Karur Town Station Cr. No. 1208 of 1970 under Section 120-B read with 399, 447, 426, 506 and Section 7 of the Criminal Law Amendment Act, 1932, and was remanded by the District Magistrate, Tiruchirapalli on 8th August, 1970.

Respondent No. 3 was arrested in Tirutturaipoondi Cr. No. 349 of 1970 under Sections 120-B, 447,426, 399,506, Indian Penal Code, and was remanded by the S.M., Tirutturaipoondi on 8th August, 1970.

During arrest, some of the accused were in possession of knives and sticks.

Respondents Nos. 4 and 8 were arrested in Thanjavur Town East P.S. Cr. No. 873 of 1970 under Section 120-B read with 399, Indian Penal Code, and were remanded to custody by S.D.M. Thanjavur.

Respondent No. 5 was arrested in Madurai Central Crime Branch Cr. No. 35 of 1970 under Section 120-B read with 447, 426, 399, 506, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act, 1932, and remanded by Sub-Magistrate, Madurai, on 8th August, 1970.

Respondent No. 6 was arrested in Tiruppur Town Cr. No. 1026 of 1970 under Section 120-B read with 446, 426, 399, 506, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act, 1932 and was remanded by S.F.C.M., Coimbatore.

Respondent No. 7 was arrested in Gudalur Cr. No. 238 of 1970 under Section 120-B read with 447, 426, 399, 506, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act and was remanded by S.D.M., Gudalur.

Respondent No. 9 was arrested in Tuticorin Crime Branch Cr. No. 227 of 1970 under Section 120-B read with 447, 426, 399, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act and was remanded by S.D.M., Tuticorin on 8th August, 1970.

Respondent No. 10 was arrested, in Andipatti Station Cr. No. 109 of 1970 under Sections 120-B, 447, 426, 399, 506, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act and was remanded by S.M., Periakulam. Thus it will be seen that the respondents have been arrested for commission of specific cognizable offences and that the arrests are perfectly justifiable and warranted in law.

He also stated that respondents 2 to 10 have been informed of the grounds of the arrest at the time of their arrest. In respect of the Notification issued by the Government of Tamil Nadu making the offences under Sections 188 and 506, Indian Penal Code, cognizable and non-bailable, he stated that the said Notification was made in view of the grave threat to person and property posed by the proposed movement throughout the State and with the bona fide object of protecting persons and property and maintaining law and order, public peace and tranquillity. He denied the allegation that the arrest and detention of respondents 2 to 10 were in violation of the fundamental rights or that the detention was illegal and improper and not bona fide.

5. In the reply affidavit, the petitioner substantially reiterated the averments made by him in his affidavit in support of the petition. But, however, he denied that the respondents have been arrested for specific cognizable offences. He did not contradict the statement made by the first respondent in his counter-affidavit that respondents 2 to 10 were informed about the grounds of their arrest at the time of their arrest.

6. We have also perused the copies of the first information reports in respect of the arrests of respondents 2 to 10 for the offences mentioned in paragraph 12 of the counter-affidavit of the first respondent and we are satisfied that the respondents were arrested under Section 120-B read with Section 399 and Sections 447, 426 and 506, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act. These arrests were made by the Police Officers as they had reasons to suspect the commission of a cognizable offence by respondents 2 to 10 and they followed the procedure provided under the Criminal Procedure Code in making such arrests. Section 54 of the Criminal Procedure Code (hereinafter called 'the Code') empowers a Police Officer, without an order from a Magistrate and without a warrant, to arrest any person who has been concerned in any cognizable offence or against whom a reasonable suspicion exists of his having been so concerned.

7. Section 157(1), Criminal Procedure Code, under which the investigation appears to have been taken by the Police Officers runs thus:

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 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.

Section 156 of the Code empowers the officer-in-charge of a Police Station to investigate any cognizable case without the order of a Magistrate. It is, therefore, clear that an officer-in-charge of a Police Station who has reason to suspect the commission of a cognizable offence, after sending a report to a Magistrate empowered to take cognizance of such offence, shall proceed to investigate and arrest the offender. It is seen from the affidavit of the first respondent and also from the copies of the reports submitted to the Magistrates by the respective Police Officers in respect of the arrest and investigation of respondents 2 to 10 that they were arrested for the offences, at least one of which, namely, Section 120-B read with Section 399, Indian Penal Code, is undoubtedly cognizable.

8. Though the specific offences under Section 447, Indian Penal Code, and Section 7(1) of the Criminal Law Amendment Act, 1932 are cognizable, i.e., that a Police Officer may arrest without warrant, yet, in Schedule II to the Criminal Procedure Code, a conspiracy to commit these offences is made non-cognizable since the punishment provided for those offences is less than two years. A criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for a terra of two years or upwards is made cognizable, in respect of which the Police Officer may arrest without warrant if arrest for the offence which is the object of the conspiracy may be without warrant but not otherwise. The offence under Section 506, Indian Penal Code, is punishable with imprisonment for two years. But it is non-cognizable according to Schedule II. By Notification under Section 10 of the Criminal Law Amendment Act, the offence under Section 506, Indian Penal Code, was declared to be cognizable and non-bailable. Though the validity of this Notification was questioned in the affidavit filed by the petitioner, we do not think on the view that we are taking, in this case, that it is necessary to consider this question and we, therefore, leave it open. The offence under Section 120-B read with Section 399, Indian Penal Code, being cognizable, the officer-in-charge of the Police Station has power to arrest the persons if he has reason to suspect that the said offence is committed by them.

9. Sri Vanamamalai, the learned Counsel for the petitioner submitted that there was no basis for the Police Officer to invoke Section 399, Indian Penal Code, and this offence had been introduced only with a view to malign the respondents and that the Police Officers had not placed sufficient materials to satisfy the Court that the respondents had conspired to commit the offence under Section 399, Indian Penal Code. We have carefully perused the first information reports produced before us, copies of which were given to the Counsel for the petitioner in Court and we are satisfied that there are sufficient materials for the Police Officers to cause the arrest of the respondents in respect of cognizable offence.

10. Though the petitioner stated in his affidavit that the arrest and detention was illegal and not bonafide, he has not substantiated that the first respondent was actuated by mala fides. Where a person who has been deprived of his liberty challenges the detention by a petition for habeas corpus, it is for the authority who has detained him to show that the person has been detained in. exercise of a valid legal power and once that is shown it is for the detenu to show that the power has been exeicised mala fide or improperly See R. v. Halliday L.R. (1971) A.C. 260. We do not see mala fides on the part of the authority who arrested these respondents. On the other hand, we are satisfied that they have exercised their power lawfully and in good faith.

11. Under Article 21 of the Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law. The offence under Section 120-B read with Section 399, Indian Penal Code, is a common law offence introduced in the Indian Penal Code. The Criminal Procedure Code, made this offence cognizable. If an officer-in-charge of the Police Station has reason to believe that a cognizable offence is committed by a person, he is empowered to arrest that person without warrant. This procedure has been strictly followed by the Police Officers, who arrested the respondents in this case and, therefore, there was no violation under Article 21 of the Constitution. After arrest, they were remanded to judicial custody and their detention is by the Magistrates exercising their powers under Section 167, Criminal Procedure Code.

12. Under Article 22(1) of the Constitution, no person who is arrested shall be detained in custody without being informed of the grounds for such arrest and under Article 22(2) every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest. The first respondent stated in his affidavit, as already observed, that at the time of the arrest, the respondents were informed of the grounds for such arrest and that after arrest, they were immediately produced before the nearest Magistrate and they were remanded to judicial custody. We have no reason to disbelieve this statement, especially when it was not contradicted by the petitioner in his reply affidavit.

13. It is stated by the learned Advocate-General that witnesses were examined and investigation is almost over in these cases and they are likely to file the charge sheets. We are, therefore, of the view that the respondents were arrested in respect of cognizable offence and their arrest and detention is lawful.

14. The petition is dismissed.


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