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TMI Blog1968 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ded them to custody up to November 20, 1968. This court issued a rule nisi to the Government of Bihar and Supdt. District Jail, Monghyr to produce Madhu Limaye and others whose names were given in the order, dated November 12, 1968, on November 25, 1968. 2. The State of Bihar filed a return but on November 25, 1968, the Court directed the Advocate-General of Bihar to procedure the relevant documents in connection with the recording of the first information report, the investigation made, the report to the Magistrate and order-sheet, etc. The hearing was adjourned to December 2, 1968. 3. It is apparent from the documents and papers placed before us that on November 2, 1968, the Sub-Divisional Magistrate, Monghyr issued an order under Section 144, Cr. P.C., prohibiting assemblage of five or more persons within the limits of 100 yards of Kiul and Lakhisarai Railway Stations for a period of one week from November 5, 1968 to November 12, 1968. According to the report submitted by the Sub-Inspector in-charge of the Government Railway Police Station, Kiul to the Sub-Divisional Magistrate, Sadar, Madhu Limaye and others had defied the prohibitory orders issued under Section 144, Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of about 400 persons at the railway ground in defiance of the order under section 144, Cr. P.C. and exhorted the public to hold satyagraha at Lakhisarai Railway Station on November 6 etc. A report was submitted by the officer-in-charge of the Kiul Government Railway Police Station on November 6, on which the Sub-Divisional Magistrate, Sadar, made an order on November 11, 1968, directing show cause notices to be issued to Madhu Limaye and others as to why action under Section 188, Indian Penal Code, should not be taken against them. On November 6, 1968, a procession of about 200 persons of Samyukta Socialist Party led by Madhu Limaye and others came to the main gate of the platform of Lakhisarai Railway Station where a Magistrate, Inspector of Railway Police and Officer-in-charge of Kiul, Government Railway Police Station were present. When these persons, in spite of the warning, forcibly entered the platform and violated the order under Section 144, Cr. P.C., the Magistrate on duty, Shri K. B. Mathur, directed the police officers present to arrest them. Madhu Limaye and others were arrested and a case was instituted against them. They were produced before the Sub-Divisional Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded in jail Hazat for a fortnight by which time report under Sections 107, 117(3), Cr. P.C. and 188, I.P.C. be routed through proper channel. As stated in the return two show cause notices were issued by the Sub-Divisional Magistrate Shri, P. P. N. Sahi on November 11, 1968, relating to the incidents on November 5, 1968 and the following day. Madhu Limaye and others were asked to show cause why action should not be taken against them under Section 188. On November 19, 1968, another order was made by a different Sub-Divisional Magistrate, Shri K. K. Pathak, saying that a petition had been filed on behalf of the State in which it was alleged that the accused persons had committed offences under Sections 143, 448, I.P.C., by forming unlawful assembly with the common object of committing criminal trespass in violation of the duly promulgated order under Section 144, Cr. P.C. It was prayed that these persons be summoned for being tried for offences under the aforesaid sections. A show cause notices appears to have been issued on or about November 20, 1968. The remand orders which were passed on November 6 and 20, 1968, were made on the basis that the accused persons had been ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of doubt, and this position has hardly been controverted by Mr. Chagla for the State, that in all the documents which were prepared before November 19, 1968, there was no mention of an offence under Section 143, I.P.C. having been committed by Madhu Limaye and other persons who were arrested on November 6, 1968. It was obviously for that reason that no formal first information report was recorded on November 6, 1968 which would have necessarily been done if the police officers effecting arrests had thought of Section 143, Indian Penal Code which is cognizable offence. No explanation has been furnished on behalf of the State as to why the information which was recorded in the general diary on November 6, was not recorded as an information in cognizable cases under Section 154 of the Cr. P. Code. There is force in the suggestion of Madhu Limaye that the first information report came to be recorded formally on November 19, 1968, only because the matter had been brought to this court by way of a petition under Article 32 of the Constitution and after a rule nisi had been issued and a petition under Article 226 had been filed in the Patna High Court. The authorities then realised tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely met on behalf of the State. Article 22(1) 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 be defended by a legal practitioner of his choice. Madhu Limaye had, in his petitions addressed to this court, made a positive assertion that he and his companions had not been informed of the grounds for their arrest. In the return field by the State this assertion has neither been controverted nor has anything been stated with reference to it. It appears that the authorities wanted to invoke all kinds of provisions like Sections 151, 107, 117 of the Cr. P.C. apart from Section 188 of the Indian Penal Code. Since no arrest could be effected for an offence under Section 188 by the police officers without proper orders these officers may have been naturally reluctant to comply with the mandatory requirements of Article 22(1) by giving the necessary information. At any rate, whatever the reasons, it has not been explained even during the course of arguments before us why the arrested persons were not told the reasons for their arrest or of the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply is mind to his case. The Criminal Procedure Code contains analogous provisions in Section 60 and 340 but out Constitution-makers were anxious to make these safeguards an integral part of fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the Constitution) which corresponded to present Article 22 : Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found in the Criminal Procedure Code and thereby probably it might be said that we are really not making any very fundamental change. But we are, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this court under Art. 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Art. 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye. 13. 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. 14. We would like to make it clear that we have ordered the release of Madhu Limaye and the other arrested persons with regard to whom rule nisi was issued on the sole ground of violation of the provisions of Art. 22(1) of the Constitution. We desire to expre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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