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Vimal Kishore Mehrotra Versus State Of Uttar Pradesh And Anr.

1955 (7) TMI 31 - ALLAHABAD HIGH COURT

Dated:- 14-7-1955 - Oak, J. JUDGMENT Oak, J. 1. This is a petition by Vimal Kishore Mehrotra under Article 226 of the Constitution for a direction or writ in, the nature of habeas corpus. The petitioner is one of the General Secretaries of Suti Mill Mazdoor Sabha, Kanpur. The workers of textile mills at Kanpur went on strike from the early part of May, 1955. The strike lasted for several weeks. The petitioner was arrested on 28-4-55 but was released on 11-5-1955. The petitioner was again arreste .....

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ties. 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 supple .....

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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's counter-affidavit, the petitioner was arrested at 11.15 a. m. There is also a slight difference between the parties as regards the time when the petitioner was produced before the Magistrate. According to both the parties, the interval between the time of arrest and the time of production before the .....

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ch prohibition is unconstitutional. 5. Sub-section (1) of Section 7, Criminal Law Amendment Act (23 of 1932) runs thus; "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 or near a place where such person or member or employed person resides or works or carries on business .....

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end to five hundred rupees, or with both". 6. It will be noticed that acts of various kinds have been made punishable under Section 7 of the Act. The learned counsel's argument that the section prohibits picketing only is not sound. 7. In - 'Byron Thornhill v. State of Alabama' (1939) 84 Law Ed 1093 (A), it was held as follows: "A statute making it an offence to go near to or loiter about, without a just cause or legal excuse therefor, the premises of anyone engaged in a la .....

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r 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 t .....

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use (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence". Thus, Clause (2) of Article 19 makes it clear that, the right of freedom of speec .....

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tra and his friends met Janardan Pande on the way. The petitioner said to labourers who were on strike. "Note these men. They are all rebels. They will not listen to verbal persuasion, until their hands and feet are broken". Janardan Pande and his friends went away quietly due to fear. But their lives and property are in danger from Vimal Kishore Mehrotra and others. The contents of annexure "C" of the counter-affidavit were denied in the petitioner's supplementary affida .....

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his friends that it was necessary to break Janardan Pande's limbs in order to teach him a lesson. In other words, the petitioner incited his friends to violence. 10. According 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 e .....

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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 Sub-section (1) oi' Section 7 of the Act. This part of Section 7 is not open to the criticism that the prohibition is ultra vir .....

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ndent, Central Prison, Fatehgarh', (S) AIR 1955 All 193 (B), it was held by this Court that- "If any provision of an Act is unconstitutional, it can he ignored as it it did not exist, without affecting the enforcement of the others. If good and bad provisions are joined together by using the word 'and' or 'or', and the enforcement of the good provision is not made dependent on the enforcement of the had one, i. e., the good provision can be enforced even if the bad one c .....

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the legal purpose." 13. Section 7 Criminal Law Amendment Act prohibits several acts. It may be that prohibition of some of these acts is unconstitutional. But it does not follow that prohibition of other acts also is unconstitutional. It is possible to separate the valid part from the invalid parts. So assuming (without deciding) that certain parts of Sub-section (1) of Section 7 of the Act are ultra vires the Constitution, the entire Section 7 cannot be condemned on that ground. I hold th .....

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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 .....

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ted to the petitioner even up to the date of the final hearing of the petition. In para, 7 of the petitioner's supplementary affidavit dated 27-6-1955, it was stated that - "No facts alleged against the deponent or grounds of the deponent's arrest have yet been communicated to the deponent except that he is detained under Section 7, Criminal Law Amendment Act." 16. It was urged on behalf of the respondents that, details were communicated to the petitioner without any delay. The .....

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his arrest was communicated to the petitioner as mentioned in para. 10 of the petitioner's affidavit and in para. 12 of the Sub-Inspector's counter affidavit, but no further details were supplied up to 27-6-55. I have to see whether under these circumstances there was sufficient compliance with Clause (1) of Article 22 of the Constitution. 17. In the case of - 'State of Bombay v. Atma Ram', AIR 1951 SC 157 (C), it was held by their Lordships of the Supreme Court that, the test i .....

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e security of the State, maintenance, of public order, etc. The only privilege a detaining authority can claim against disclosure of facts is on grounds of public interest. If no facts at all leading to the detention of a detenu are to be mentioned in the grounds which are to be furnished to him, then obviously the intention underlying the enactment 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 .....

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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. Furth .....

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ormation has already been supplied to the petitioner. The alleged occurrence described in snnexure 'C' took place at Kanpur. The petitioner was arrested in Kanpur City. The jail is located at Kanpur. The necessary iniormation could easily be supplied to the petitioner within a week of his arrest. 21. However, all that the petitioner was told that, he had been arrested under Section 7, Criminal Law Amendment Act, 1932. This information could not give the petitioner any idea about the offe .....

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communicated to the! arrested person should be somewhat similar to the charge framed by the Court for the trial of a case. In the present case the petitioner should have been told that the charge against him is that, on the morning of 18-5-1955 near J. K. Jute Mill, Kanpur he threatened Janardan Pande in order to dissuade him from going to work. No such information was supplied to the petitioner. He was merely told that he had been arrested under Section 7, Criminal Law Amendment Act, 1932. Tha .....

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t, 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 th .....

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legal. The petitioner's detention in jail even on 27-6-1955 was illegal. He should, therefore, be released. 24. I am, therefore, of opinion that this petition should be allowed, and the petitioner should be released forthwith. Desai, J. 25. The allegation that the applicant was detained in police custody for more than 24 hours before being produced before a Magistrate is denied in the counter-affidavit and was not present before us. 26. Section 7, Criminal Law Amendment Act 23 of 1932, conta .....

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said to be unconstitutional. There is also no force in the contention that the section makes no distinction between an act covered by the guarantee of Article 19 and an act outside the scope, of the guarantee, or that it punishes violent and non-violent picketing both. Such an argument would be acceptable only if the constitutional and the non-constitutional provisions are so mixed up in a section as not to be severable. 27. The particular provision of Section 7 which is said to apply to the ac .....

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for peaceful picketing may be constitutional or may not be constitutional, and it may be or may not be punishable under some provision of Section 7, but the applicant has not been arrested on the charge of doing peaceful picketing. Whatever may be the law regarding peaceful picketing, it cannot be doubted that intimidating a person with intent to cause him to abstain from doing an act which he has a right to do is not peaceful picketing. If peaceful picketing is made an offence under the sectio .....

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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 Sect .....

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cant on being arrested was informed merely that he had been arrested under Section 7 of the Act; there is no allegation that any other information was given to him. Section 7 is a wide section containing several provisions and he was not informed under which particular provision he was arrested. Nothing was said to him about the allegation made against him or the act alleged to have been done by him and amounting to an offence punishable under Section 7. 29. The rule in Article 22(1) that a pers .....

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t p. 586 (F). It is a rule of the common law and is described in different languages by different authorities, but the meaning is the same; the arrested person must be told for what he is arrested or the cause of his arrest. In the United States the accused has the constitutional right "to be informed of the nature and cause of the accusation"; see 6th Amendment to the American Constitution, In - 'Hooper v. Lane', (1857) 6 HLC 443 : 10 ER 1368 (G), one ol the reasons for the ru .....

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uld be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that 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 legalis .....

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ling 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 regain freedom. One more reason is that it acts as a safeguard against despotism and over-zeal. As remarked by Professor Glanville L. Williams (supra, at page 17) "the rule has th .....

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this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard". In 'United States v. Cruikshank', (1876) 92 US 542 at page 559: 23 Law Ed 588 at p. 594 (I), it was observed by Waite C. J. that the accused is given the right to have a specification of the charge against him in order that he may decide whether he should present his defence by motion to quash, demurrer or plea. The debates of the Cons .....

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the light of the reasons given above for the provision. If a person is arrested on a warrant, the grounds or reasons for the arrest are the warrant; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. If he is arrested for committing an offence, he must be told that he has committed a certain offence for which he would be pla .....

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e 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 .....

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t be has committed or is concerned with a cognizable crime or that from his demeanour or other circumstances, the officer arresting him has reasonable suspicion that he is connected with a cognizable crime or he is about to commit such a crime. These are the general nature of the circumstances in which an arrest is effected. Other circumstances are there is a warrant or summons against him or there is an order, by an appropriate authority, for his arrest. These are circumstances which it is easy .....

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for his arrest does not mean that technical or precise language need be used. In the words of Professor Glanville, L. Williams (page 16) "the charge need not contain the same accurate description of the offence as an indictment. In deed, the precise charge need not be formulated, provided that tbe accused is told the act for which he is arrested". I, therefore, agree with my learned brother that when the applicant was informed at the time of his arrest that he was arrested under Secti .....

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st), the detention is illegal being a prohibited act, and he must be released on a habeas corpus application. Every person whose fundamental right is infringed is entitled to the remedy of a writ. In 'Leachinsky's case (F)' Lord Du Parcq observed at page 600:- "The omission to tell a person who 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 &q .....

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rested 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 rul .....

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rson on both the warrants and informs him of both the warrants, the arrest is good and that if he arrests him on the invalid warrant only, he cannot justify the arrest by subsequently relying upon the valid warrant. 33. Under Article 22(5) when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order must communicate to him the grounds on which the order has been made. What is the meaning of 'grounds' in this prov .....

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ade" under a Preventive Detention Act occurring in Article 22 must be construed in the same manner. The object behind an arrested person's being informed of the grounds for his arrest is more or less the same as that behind a detenu's being informed of the grounds for his detention. In one case he may wish to defend himself against his arrest or regain freedom, by showing that his arrest is illegal or unjustified or by applying for bail and in the other case he may wish to defend ag .....

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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 inf .....

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ined; it was, therefore, argued that he cannot be released on habeas corpus now. I am afraid the argument is fallacious. The law is not that detention following arrest is illegal so long as the grounds for the arrest are not communicated to the person; it is that he must be informed of the grounds for arrest "as soon as may be", and once there has been a faiilure to do so, his detention becomes illegal once for all. Informing him of the grounds at a later stage is no satisfaction of hi .....

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on arresting him and there was nothing to prevent its being communicated to him. If he could be informed at the moment of his arrest of the grounds for his arrest, it means that he was not informed "as soon as may be". Informing him through the return cannot possibly be said to be "as soon as may be." The very nature of the right conferred and the reason for the confirment of the right prevent effective communication of the grounds of arrest to an arrested person with the sli .....

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