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TMI Blog1992 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... er has also been filed by the petitioner and, therefore, as prayed by learned Counsel for the parties, all the petitions are being finally disposed at the admission stage. Sri R.P. Singh, Sri S.V. Goswami, Sri Prem Prakash Yadav and Sri D.S. Misra have been heard on behalf of the petitioners in each case respectively while Sri Shivaji Misra has appeared on behalf of the opposite parties, all of whom have been heard at sufficient length. 2. The facts in each case as pleaded by the respective sides are noted below: 3. From the statement of the cases contained above the fact is apparent. The petitioners in each case have already been remanded to judicial custody when they were produced before the Magistrate concerned. The question posed was that since presently there is a valid order remanding them to judicial custody, even if there was a prior infringement either of Article 22(1) or 22(2) of the Constitution or Section 50 of the Cr. P.C, the said illegality stood cured and in any case has become irrelevant. 4. It may be stated here that all the learned Counsel on behalf of the petitioners have argued that once there was a breach of Article 22 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed then cognizance will be taken by the Magistrate under Section 190, Cr. P.C. and once he takes cognizance it will be followed by summons or warrant as the case may be. In the event of arrest of an accused in pursuance of such cognizance so released person shall have to appear before the Court concerned and provisions of Chapter-XXXIII, Cr. P.C. relating to bail and filing of bonds will be applied. 7. Therefore, in a given case if non-compliance of Article 22 of the Constitution of India or Section 50, Cr. P.C. is held exist, the trial of the case would not be frustrated if the arrest is held on that limited ground to be illegal. It is true that in some cases where the arrest itself may give rise to an offence which may be the reason of arrest, some difficulty may arise. Since in the present cases none of the facts attracts such a problem, the said hypothetical question is left aside. 8. Long arguments on the Constitutional aspects were made by the learned Counsel for the petitioners. It may be stated here that three leading cases on the point are Ram Narain v. State of Delhi Madhu Limaye v. Superintendent and Bhim Singh v. State of J K. 9. Both the contesting sides relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. He has, therefore, to be released forthwith. 13. Coming to the cases of Mahendra Bhushan it may be stated here that there is no doubt that some telegrams were sent to some authorities telling them that Ashwani Kumar (accused-detenu) was arrested on 27-4-1992. This fact has, however, been denied by the State and it has been said that since the petitioner could foresee his arrest, the telegrams were sent in Peshbandi to save his own skin. 14. In this connection the other argument placed emphatically by Sri Goswami was that even if for some reason it is accepted that the petitioner was arrested on 30-4-1992, there is no valid remand order in favour of the petitioner and, therefore, he should be released forthwith. 15. On behalf of the State Photostat copy of the actual recovery memo prepared on 30-4-92 which bears the signature of the detenu accused Ashwani Kumar and of witnesses of the recovery indicates that when the petitioner was arrested he was told that his arrest is made in connection with case Crime No. 556/92, under Section 460, IPC. The recovery memo makes a specific reference in this regard which is quoted below :-- Gher Kar Karib 10-30 Baje Raat Us Vyakti K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 as the date of arrest when already the previous remand was obtained on 1-5-1992 alleging the arrest on the preceding day of 1-5-92. Consequently, it is proved beyond doubt that further remand of 14 days beginning from 14-5-92 to 28-5-92 has been granted lawfully by the Magistrate concerned. 18. In view of the aforesaid discussion none of the points canvassed on behalf of the detenu accused Ashwani Kumar in the petition filed on his behalf by Mahendra Bhushan can succeed. Consequently, Mahendra Bhushan's petition should fail. 19. Coming to the case of Israr Ahmad it has to be noted that telegrams had been sent on 8/9-4-1992 alleging that the petitioner was arrested by the police. It is rightly pointed out by the State that while in paras Nos. 2 and 3 of the Habeas Corpus petition it has been stated that the arrest was affected by S.H.O. Dhoomanganj Allahabad but the telegram was silent as to who had arrested the petitioner. It was again rightly pointed out that if it was a fact that on 8th/9th the petitioner Israr Ahmad had been arrested from his residence, there could have been no reason or justification for not filing the Habeas Corpus petition on any day between the 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested in the case Crime No. 171/191 of Police-Station Attarsuiya. 23. It is rightly argued on behalf of the State that there could be no justification or reason for Indrajit Chaturvedi swearing a false affidavit before this Court knowing fully well that he himself is a signatory to the recovery memos which disclosed that the petitioner was arrested in a case and loot-property was recovered from him in which he himself is a signatory. The explanation offered by the State that the news was also published in the local newspapers through which people of Allahabad came to know of the arrest appears to be a plausible explanation wrongly put and drafted in his original counter affidavit. It is impossible to believe that Indrajit Chaturvedi should have at one stage pleaded ignorance of the case and on the other should himself admit to be a recovery witnesses. Moreover there was nothing compelling for Sri Indrajit Chaturvedi not to take himself away from the making a witness in the recovery memo should he not been really a witness of recovery and arrest, and, if all papers were subsequently prepared, as was argued by Sri Yadav, there could be no reason why someone other than Sri Indr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was rightly argued by Shri Shivaji, Misra for the State it could have been thought proper by the police concerned to indicate the arrest of the petitioner at a point of time earlier than filing of the writ petition if they were to show a wrong arrest. Consequently there appears to be force in the reasoning adopted in the argument of the State that the petitioner had himself eloped from 8th or 9th of April from his residence or, he got the telegram sent on his behalf through his wife as a precautionary measure. He came to know of the arrest of the two co-accused Lal Chand and Bablu on 14-4-92 along with a part of the dacoity property who had named the petitioner also. Therefore, in his original telegram of 8th of April it had not been disclosed as to which police-station had arrested him and while moving the petition on 16-4-1992 it was incorporated in it that the petitioner was arrested by the police of Police-station Dhoomanganj which is factually incorrect. 26: It is true that at times too much of intelligence may lead oneself to difficulty. At this preliminary stage of the case it is impossible to believe that the property worth of Rs. 40,000/- would be falsely planted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition it has been said that the petitioner was arrested on 24-1-1992 without any warrant and without commission of any offence and he repeatedly asked the reasons of his arrest but it was not disclosed to him. None of the police personnel have ever told the petitioner Zakir the grounds of his arrest. He was taken to police station and mal-treated. Therefore, there was non-compliance of Article 22(1) of the Constitution of India and Section 50, Cr. P.C. It is admitted that C.J.M. Bareilly has granted police remand on 25-1-1992 when the petitioner was produced before him and it is further admitted that on expiry of the police remand, the petitioner was again produced before the C.J.M. who granted judicial custody for 15 days. 34. It was argued that on 30-1-1992 an application on behalf of the petitioner was moved before C.J.M. indicating therein that he has not been told the grounds of his arrest. 35. The State's case, however, is that a case was registered against the petitioner on 24-1-1992 under Section 307, IPC read with Section 7, CLA. and another case No. 89, under Section 25(a) of the Arms Act at P.S. Kotwali when he was arrested around 2 p.m. in the District Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Zakir before the Magistrate within 24 hours was and could not have been disputed on the facts and circumstance of the present case. 39. However, Sri D.S. Misra, had raised another argument saying that how and why is it that the entire period of 24 hours was necessary for the petitioner to be produced before the Magistrate in as much as he was already arrested around 2 p.m. on 24-1-1992. The argument proceeds that the court of Magistrate was available in the immediate neighbourhood and the petitioner could have been produced within hours of his arrest. 40. It was replied that after arrest necessary formalities had to be complied with by taking the petitioner to the police-station, getting the case registered, getting all the formalities completed relating to the property seized from the petitioner. Under the circumstances it was only the next day which could have been the earliest point of time when the petitioner was to be produced for obtaining remand and since admittedly the petitioner was produced on 25-1-1992 before the Magistrate concerned there was absolutely no illegality or laxity or delay in producing the petitioner before the Magistrate as required by law. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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