9911796707
TMI Blog1955 (7) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. The State of Uttar Pradesh is respondent 1, while the Superintendent, Jail, Kanpur is respondent 2. The petitioner was produced before this Court on 27-6-1954 as directed by the Court. The learned Deputy Government Advocate appearing on behalf of the two respondents filed a counter-affidavit to justify the petitioner's arrest and detention. The counter-affidavit is by one Suraj Singh who is a Sub-Inspector of Police posted in district Kanpur. On 27-6-1955, the petitioner filed a supplementary affidavit as rejoinder to the Sub-Inspector's counter-affidavit. 3. Throe points were raised on behalf of the petitioner. The first point was that he was detained in police custody for more than twenty-four hours before he was produced before a Magistrate. It was urged that the detention was in contravention of Clause (2) of Article 22 of the Constitution. It is common ground that the petitioner was arrested on 18-5-1955, and was produced before a Magistrate on 19-5-1955. But parties are not agreed about the exact time of arrest and production before the Magistrate. Accordingly to the petitioner, he was arrested on the 18th May, at 8.40 a. m. According to the Sub-Inspector& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons not to have business dealings with or be employed by such person, or to picket the works or place of business of another for the purpose of hindering, delaying or interfering with or injuring any lawful business or enterprise which, as authoritatively construed and applied, leaves no room for exceptions based either on the number of persons engaged in the proscribed activity, the peaceful character of their demeanour the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute, and which therefore prohibits any means used in the vicinity of a labour dispute to publicize the facts of the dispute, violates the constitutional guarantees of freedom of speech and of the press". This decision by the Supreme Court of United States lends support to the contention of the learned counsel for the petitioner that, prohibition of peaceful picketing is unconstitutional. But, as already observed, the operation of Section 7, Criminal Law Amendment Act is not confined to peaceful picketing. 8. Learned counsel for the petitioner relied upon Sub-clause (a) of Clause (1) of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to Sub-section (1) of Section 7, Criminal Law Amendment Act, . "Whoever -- (a) with intent to cause any person to abstain from doing or to do any act which such person has a right to do or to abstain from doing, obstructs or uses violence to or intimidates such person or any member of his family or person in his employ, or loiters at..... (b) loiters or does any similar act.....shall be punished.. ." Now, the learned counsel for the petitioner conceded that, no one has the right to obstruct or use violence to or intimidate a person lawfully engaged in his work. So, prohibition of such improper interference cannot be criticised as unconstitutional. The allegations made in annexure 'C' of the counter-affidavit seem to make out the offence of criminal intimidation made punishable by Section 506 I. P. C. Learned counsel did not argue that Section 506 I. P. C. is ultra vires the Constitution. If Section 506 I. P. C. is intra vires the Constitution, so is the first part of Clause (a) of Sub-section (1) of Section 7, Criminal Law Amendment Act. The allegations of annexure 'C' make out against the petitioner a case under the first part of Clause (a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the petitioner is that, the ground for the petitioner's arrest was not communicated to him as required by Clause (1) of Article 22 of the Constitution. Clause (1) of Article 22 runs thus: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the ground for such arrest....." 15. This point was not expressly raised in the petition dated 23-5-1955. In para. 9 of the petition it was merely stated that, the applicant was informed by the jail authorities on 19-5-1955 that he was arrested under Section 7, Criminal Law Amendment Act, 1932. On this point it was stated in para. 12 of the Sub-Inspector's counter-affidavit that-- "the applicant was told at the time of his arrest itself that he was being arrested under Section 7, Criminal1 Law Amendment Act, 1932, and may have been further informed by the jail authorities that he was being detained for that offence as alleged in para 12 of Sri Goswami's affidavit." It was suggested on behalf of the petitioner that, the point was not expressly raised in the petition, as the peition was moved only five days after the arrest. It was, however, arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctment of Article 22(6) is frustrated. 19. In both the cases referred to above, the persons had been detained under the provisions of Preventive Detention Act. The information to be supplied to such a person is governed by Clause (5) of Art, 22. In the present case the petitioner has been arrested for a specific offence. His case is governed by Clause (1) and not by Clause (5) of Article 22. However, under both the clauses, certain information has to be supplied to the person arrested and detained. Under Clause (1), the ground for arrest has to be communicated to the person arrested. Under Clause (5) the grounds on which the order of detention has been made has to be communicated to the person detained. So decisions of Courts under Clause (5) of Article 22 will be of much assistance in interpreting Clause (1) of Article 22. 20. The object underlying the provision that the ground for arrest should be communicated to the person arrested appears to be this. On learning about the ground for arrest, the man will be in a position to make an application to the appropriate Court for bail, or move the High Court for a writ of habeas corpus. Further, the information will enable the arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; In that case their Lordships of the Supreme Court held that, in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. In the present case the writ petition was moved on 23-5-1955. This Court Sx-cd 27-6-1955 as the date of the return. We have therefore, to consider whether the petitioner's detention in jail on 27-6-1955 was unlawful, 23. I have shown above that, the necessary information could easily be supplied to the petitioner within a week of his arrest i. e., by 25-5-1955. So, the petitioner's detention in jail on 26-5-1955 and on subsequent dates was illegal. The learned Deputy Government Advocate argued that the petitioner knows the ground now, and the present detention is not illegal. I do not agree. If the petitioner's detention on 26-5-1955 and on subsequent days was illegal, the fact that the necessary information somehow reached the petitioner on 27-6-1955, would not render the detention legal. The petitioner's detention in jail even on 27-6-1955 was illegal. He should, therefore, be released. 24. I am, therefore, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee contained in Article 19 of the Constitution, the section may be unconstitutional to that extent, but only to that extent; as regards is making it an offence for any person to intimidate another with intent to cause him to abstain from doing an act which he has a right to do, it admittedly does not infringe the guarantee, and is not unconstitutional. We are not concerned in the present proceedings with the truth of the allegation made against the applicant; we have to decide whether on that allegation the applicant could be legally arrest-ea. Therefore, his plea that the allegation made against him is false cannot be entertained in these proceedings. Also the State's claim that the allegation makes out an offence punishable under the above quoted provision of Section 7 has some force and cannot be rejected summarily in those proceedings; it must be inquired into through a regular trial. There is nothing unconstitutional in the provision of Section 7 under which the applicant is sought to be punished ior doing the act, and admittedly the applicant could be arrested on the charge that he was guilty under Section 7. Therefore the arrest of the applicant was legal. 28. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may be arrested without knowing why he is arrested? .....Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil". Professor Glanvile L. Williams in his article "Requisites of a Valid Arrest in (1954) Criminal Law Review, page 6 at page 16, criticised the reason given by Lord Simonds as "somewhat legalistic" because few people know the law of arrest in such. a way that they can decide on the spot whether the arrest to which they are being subjected is legal. In his opinion the true reason is a different one, e. g., the reason given by Viscount 11th Simon L. C. in the same case at page 588 in the following words: "If the charge on suspicion of which the man if arrested is then and there made known to him, he has the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken with the result that further inquiries may save him from the consequences of false accusation." Another reason given by Lord Simonds at page 592 is that the arrested person may without a moment's delay take such steps as will enable him to rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tried; informing him merely of the law applicable to that act would not be enough. Thus it would not he enough to tell him, "You have committed an offence punishable under Section 7, Criminal Law Amendment Act" and it would be still less enough to tell him, "You are arrested under Section 7, Criminal Law Amendment Act". It would have been quite useless to tell the applicant that he was arrested for committing an offence under Section 7. The section contains several provisions, some of which may be valid and others not, and unless he was told under which particular provision he was arrested, he would not know whether his arrest was legal or not and could not take immediate action to regain freedom. The act alleged to have been done by him for which he is said to be liable to be punished under Section 7 of the Act is that he had intimidated Janardan Pandey etc. on 18-5-1955 with a view to cause them to abstain from going to the mills for work; that was the ground or reason for his arrest which should have been communicated to him under the Constitution. 31. In the debate in the Constituent Assembly it was pointed out by one member:-- "The usual grounds fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity". According to Viscount Simon in the same case "The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed" (p. 587). Leachinsky was arrested without a warrant by a police officer who suspected on reasonable grounds that he had stolen a bale of cloth. But the police officer told him that he was arrested on a charge of unlawful possession under the Liverpool Corporation Act. He had no power to arrest him without a warrant under that Act; so the reason given by him did not justify the arrest. He could be arrested on the ground of being suspected to have stolen some property, but that ground was not given to him as the ground for his arrest. It was held by the House of Lords that the arrest and the subsequent detention were unlawful. The House of Lords attached so much importance to the rule that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s be placed on trial and will know why he has been arrested; but a detenu will never be placed on trial and has no opportunity of defending himself except through a representation which he cannot make effectively unless he is told of all the acts done by him on account of which the authority has been satisfied of the necessity of his detention. But I do not think that this should make any Difference to the effect of the failure to inform an arrested person of the grounds for his arrest. He is denied his fundamental right as much as a detenu is denied of his fundamental right if he is not informed of the grounds for his detention. If the preventive detention becomes illegal on account of the failure, the detention after arrest also becomes illegal on account of the failure. 34. On behalf of the State it was contended that in a habeas corpus proceeding a High Court is concerned with the question of the legality of detention on the date of return and not earlier. The applicant has been told of the grounds for his arrest in the return. Now he knows why he was arrested and is being detained; it was, therefore, argued that he cannot be released on habeas corpus now. I am afraid the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t grounds for his arrest by substitution of the incorrect grounds given at the moment of the arrest is without any effect, his communicating to him the correct grounds for his arrest with delay without having communicating to him any grounds at the moment of his arrest is all the more without any effect. Since the law is that detention is unlawful so long as the grounds for arrest are not communicated, once the detention becomes unlawful, it cannot later become lawful on the grounds being communicated but would remain unlawful notwithstanding the communication. 35. I agree with my learned brother that the applicant's detention is illegal, because he was not informed of the reasons for his arrest as soon as it was possible to do so and that he should be forthwith released from custody. There is no question of our quashing the proceedings pending against him, because whether he has done the act alleged to have been done by him and whether it amounts to an offence punishable under Section 7, Criminal Law Amendment Act are questions which will be decided during the trial and cannot be decided in advance of it. It may be that the applicant's freedom will be short-lived becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
