9911796707
TMI Blog1983 (1) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 was in Police custody on account of the aforesaid remand order. It is submitted that the arrest of the petitioner No. 2 was not only illegal, unconstitutional and without jurisdiction. but the same was also mala fide. Hence, this application was originally filed by the petitioner No. 1 to challenge the propriety, legality, constitutionality, correctness and validity of the arrest of the petitioner No. 2 as well as the subsequent order of remand to the Police custody passed by the respondent No. 5. As pointed out earlier, the petitioner No. 2 has been added as a party later by an amendment order dated 22-3-1982 as by that time the respondent No. 5 had rejected the request of the investigating agency for further remand of accused No. 2 and as consequently accused No. 2 was released from the custody. 6. The application is filed under Articles 226 and 227 of the Constitution of India for the enforcement of the fundamental right under Articles 21 and 22(1) of the Constitution of India and statutory right under Section 50(1) of the Criminal Procedure Code, it is filed on the basis of the following main contentions: 1. The respondent Nos. 3 and 4 have acted mala fide as the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such oral communication was made, whether full particulars were communicated not being known, the arrest and detention of the person must be termed illegal. These submissions are made on the basis of the reported ruling of the High Court of Calcutta in the case of Govind Prasad v. State of West Bengal, reported in and of the High Court of Gauhati in the case of Ajitkumar v. State of Assam reported in 3. It is further submitted that in our country, majority of population is absolutely illiterate and unaware of its fundamental and legal rights. It is, therefore, the duty of those who are exercising public power to be extra careful in seeing that no public power is abused or misused ince all powers are intended to serve the ends of justice and not to defeat the same. 4. The impugned action of the respondents. Nos. 2, 3 and 4 is without jurisdiction, inasmuch as the original complaint was filed at the Bavlu Police Station and therefore the respondent Nos. 2. 3 and 4 had no jurisdiction to carry out the investigation of the complaint filed at Bavlu Police Station and hence the search, seizure and arrest are illegal. 5. The petitioner No. 2 was a bona fide purchaser for valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers in their respective affidavits-in-reply, a question arises whether such a situation has arisen which would call for intervention by the High Court at the stage of investigation. He further submitted that by the time the petition is heard, petitioner No. 2 is already released on bail and therefore are not the questions of illegal arrest and the illegal remand order academic and cannot these questions be considered at the time of the trial of the petitioner No. 2 and the trial of respondent No. 4 in the private complaint? If we decide these questions at this stage, would not the judicial proceedings be prejudiced? Mr. Mehta submitted two authorities for my consideration and they are the case of Madhu Limaye AIR 1969 SC 1014 : l969 Cri LJ 1440 and the case of State of Bihar v. J.A.C Saldanna 1980CriLJ98 . 25. The Supreme Court in the case of Madhu Limaye (supra) has observed as under (at d. 1445): 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally amounting to a mandamus to close the case before the investigation is complete. We say no more. 27. These observations are a caveat in the present proceedings. It is hazardous to come to any conclusion on a serious question of the allegations of mala fides against the investigating officers in the circumstances of the present case outlined above, only on the strength of affidavits. 28. The next important allegation which is made by Mr. N. K. Barot is that respondents Nos. 2 to 4 have acted without jurisdiction. He submitted that considering the relevant provisions of the Criminal Procedure Code, and particularly Section 156(1) thereof, respondent No. 4 could not have entered investigation and therefore whatever he did or caused to be done was without jurisdiction. if he was working under the instructions of his superior officer, as alleged, even then his superior officer could not have authorised him to undertake investigation of any case which was; not within the jurisdiction of respondent No. 4. In order to appreciate the argument of Mr. N.K. Barot. I shall reproduce Section 156(1) of the Criminal Procedure Code, which is as under: 156 (1) Any officer in charge of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one which such officer was not empowered under this section to investigate. Section 156(2) of the Criminal Procedure Code is a reply to Mr. N.K. Barot's challenge to the territorial jurisdiction of respondent No. 4. I do not propose to examine this question at great length since the issue raised by Mr. Barot is squarely dealt with and decided by Brother S B. Majmudar J, in Liladesitade Pavaiya v. State reported in A young boy was enticed away by the accused to Baranpura in Baroda where eunuchs were staying. After some time the boy was taken to Kalol. There, the other accused persons cut off the private part of the boy by a weapon like small sword. After the complainant regained consciousness, he was brought back to Baroda. The complainant alleged that the entire incident had happened because of his ignorance and minor age, and now he was made to live in a form of a eunuch. The complaint was first filed at Chhot-audepur from which it was transferred to Karelibag Police Station, Baroda where the officer-in-charge started investigation as the alleged offences were cognizable in nature The petitioners-accused Nos. 3 to 5 urged to the High Court that the Karelibag police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively, an Officer other than the Officer in charge of the Police Station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said police station, in either case, Section 156(2) immunises this investigation against any possible attack on the ground of absence of power with the concerned investigating officer. He further observed as under: If the legislature in its wisdom has insulated inquiries and trials before the criminal Courts against the attacks on the ground of absence of territorial jurisdiction, save and except in a given contingency where failure of justice and material prejudice are demonstrated, it would be too much to hold that at prior stage of investigation a police officer who is investigating into the offence which does not fall within his territorial jurisdiction, would be required to be totally prohibited from proceeding with investigation on the ground that some of the offences into which he is investigating fall outside the ambit of his local jurisdiction. Brother Majumdar J. has thoroughly scrutinized the question of applicability of Section 156(2) of the Criminal Procedure Code and I do not want to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 4 arrested petitioner No. 2, petitioner No. 2 was not supplied full particulars of the offence for which he was arrested or other grounds for such arrest. Mr. Barot submitted that the arrest of petitioner No. 2 is in violation of Article 21, Article 22 of the Constitution of India and Section 50(1) of the Criminal procedure Code. Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(1) says 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. Section 50(1) of the Criminal Procedure Code says that 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. 44. Mr. Barot submitted that the term grounds for arrest has repeatedly been interpreted by the Supreme Court of India as meaning all relevant facts and statements and evidence colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vardhman General and Spinning Mills Ltd., at P. S. Sadar Ludhiana. Ludhiana P. S. Case No. 620 dated 15-12-1974 was started under Sections 406/408/468/471 of the Indian Penal Code. In course of the investigation that followed, the accused-petitioner who is stated to be a businessman living at 132/1, Mahatma Gandhi Road, Calcutta was arrested on the 20th March, 1975, by the Ludhiana Police with the assistance of the Police of the Jorasanko police Station, in Calcutta and was produced on the same day before the learned Additional Chief Metropolitan Magistrate. Calcutta, On an application for bail moved on behalf of the accused-petitioner Sri K. G. Choudhury. Additional Chief Metropolitan Magistrate. Calcutta by his order dated the 20th March, 1975, rejected the prayer for bail at this stage, and allowed the officer concerned coming from Ludhiana to take the accused away for being produced at the Ludhiana Court and to report compliance to the Calcutta Court by 8-4-1975. This was the impugned order which formed the subject-matter of the application for bail. An argument was advanced inter alia on behalf of the petitioner relating to a non-consideration on the part of the learned Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be supplied in writing, that would be the meaning which must be deduced from the requirement of communicating the full particulars of the offence to the accused. While the reported case indeed emphasises the mandatory character of the requirement under Section 50(1) of the Criminal P.C. and holds that non-compliance with this provision amounts to non-conformance to the procedure established by law, it nowhere lays down that the requirement of Section 50(1) is pari materia with the requirement under Article 22(5) of the Constitution of India. On the contrary, it is expressly observed at paragraph 9 of the judgment that Provision of Section 50(1) of the Criminal P.C. brings the law in conformity with the provisions of Article 22(1) of the Constitution of India. The requirement of Article 22(1) of the Constitution of India is that a person who is arrested shall not be detained in custody without being informed, as soon as may be. of the grounds for such arrest. Article 22(1) and Article 22(5) of the Constitution of India are differently worded and the requirements of both are different, it is difficult to agree with Mr. Barot that Section 50(1) of the Cri P.C. must be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother room and no action was taken with regard to him. He was in great predicament and had to pass the night sitting till next morning, on the following day in the morning, he was visited by some friends and at about 1 p. m. the petitioner was brought to the prosecuting Inspector's office at the Deputy Commissioner's Court at Gauhati where he was kept confined till 5. P. M. Later on, he applied for bail which was granted. The petitioner applied under Section 482 of the Criminal P.C. 1973. He did not deny that the Police Officer did not have the power to arrest an accused if he is suspected of a cognizable offence, but his submission was that in that case the accused is entitled to communication of the full particulars of the offence under Section 50 of the Criminal Procedure Code and in that case this was not done In his affidavit, he specifically stated that communication of particulars of the offence has not been made to him in spite of the orders of the Chief Judicial Magistrate to do so. This allegation was not countered either by the State of Assam, respondent No. 1 or the Officer-in-Charge of the Thana (respondent No. 3) by any affidavit. In this situation, Baharul I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated. I say that the petitioner No. 1 was given the information in presence of the petitioner No. 2 about his arrest and the petitioner No. 2 was also examined and was given the reasons for his arrest. So, it cannot be said that respondent No. 4 has not stated on affidavit the facts which would counter petitioner's affidavit wherein the allegation of non-compliance with Section 50(1) of the Criminal P. C are averred. It is pertinent to observe that we do not find any observation in this case also that the compliance of Section 50(1) of the Criminal Procedure Code should be in writing. 52. Mr. Bard's main argument in this connection was that the compliance with Section 50(1) of the Criminal Procedure Code should be interpreted not only in the light of Article 22(1) of the Constitution of India, but also in the light of Article 22(5) of the Constitution of India Mr. Barot cited several authorities founded upon Article 22(5) of the Constitution of India to convince me that they had application while interpreting Section 50(1) of the Criminal procedure Code and therefore in comply with Section 50(1) of the Cri. P.C. the Prosecution ought to have supplied to petitioner N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d petitioner No. 2 at his shop and petitioner No. 2 had produced Bani with was melted from the stolen gold ornaments, while he did not produce other ornaments which were allegedly sold to him by accused Babalsang, Petitioner No. 2 had also produced the bill book which has been commented above. After further interrogation of petitioner No. 2 by respondent No. 4. the shop and the house of petitioner No. 2 were searched for stolen ornaments. There were the circumstances of which the petitioner No. 2 was clearly aware. Even so. respondent No. 4 has stated that he had given the reasons of petitioner No. 2's arrest to petitioner No. 2. Mr. Mehta submitted, can it be said by any stretch of imagination that petitioner No. 2 was not communicated the full particulars of the offence for which he was arrested? Mr. Mehta submitted that petitioner No. 2 was communicated everything necessary at the earliest opportunity to enable him to know exactly as to what the accusation against him was, so that he could exercise his right of consulting a legal practitioner of his choice. in fact, petitioner No. 2 did consult his advocate who argued the application filed by the prosecution for remand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particulars and the reasons for his arrest as to why he is being arrested. The petitioner who as arrested must be informed of the particulars about the offence for which he is arrested and each case depends upon its own facts. 55. I might say at this stage that I accept the arguments of the learned Public Prosecutor Mr. Mehta 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 Criminal P.C. that the communication of the full particulars of the offence for which the accused is arrested or other grounds for such arrest should necessarily be conveyed to him in writing. I also agree with Mr. Mehta's submission that the requirements of Article 22(1) and Article 22(5) of the Constitution of India are laid in relation to different contingencies. Article 22(4) of the Constitution of India provides that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court has reported before the expiration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
