TMI Blog2019 (1) TMI 1971X X X X Extracts X X X X X X X X Extracts X X X X ..... asons for the arrest, which is a very fundamental requirement before a person is arrested in a case. The order of the Court below shows that the gist of the offence alleged to have been committed by the accused in the publication of Nakkeran was read out to the accused in the open Court. This was the first time the respondent came to know the reason for his arrest. If the arrest intimation form does not even reveal which police station is involved in the process of arrest, it will be difficult to even fix the jurisdiction of the Court which has to consider the remand of the accused. The arrest intimation form does not contain these fundamental particulars about the police station involved and that is the reason why, the Court below has stated in the order that the very jurisdiction of the court is not clear since, no police station has been mentioned in the arrest intimation form. Whether a learned Magistrate had properly applied his mind regarding the materials available on record while rejecting the remand of the respondent? - Whether the learned Judicial Magistrate has given sufficient reasons in the impugned order while rejecting the remand of the respondent? - HELD THA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 213 - SUPREME COURT] that with the prior permission of the Court, the Court can permit any person to speak in the Court. In this case, the Court was dealing with a very peculiar case where a publication has been made a subject matter of an offence under Section 124 of IPC, which is unprecedented and which has come up for the first time before a Court. Therefore, the learned Magistrate wanted to get the views of a reputed and senior journalist as to whether there are any such instances in the past. This query was answered by Mr.N.Ram by touching upon the Freedom of press. Whether the procedure adopted by the learned Magistrate, who on the one hand rejected the remand of the respondent and on the other hand directed the respondent to execute a bail bond, by itself shows uncertainty in the mind of the Magistrate and consequently, will amount to non-application of mind? - HELD THAT:- This Court does not find any ground to interfere with the order passed by the learned Magistrate rejecting the remand of the respondent, who was produced by the police officer after arrest. This Court wants to record its appreciation to the learned XIII Metropolitan Magistrate Court, Egmore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the learned Magistrate, made the following submissions :- 5.1. The learned Magistrate did not apply his mind to the sufficient materials that were produced by the police by way of remand report and case diary. 5.2 The learned Magistrate heard Mr.N.Ram, the Chairman of Hindu Publications and has even recorded his submissions in the impugned order and therefore, the learned Magistrate was swayed by extraneous considerations while considering the remand of the accused person. 5.3 Mr.N.Ram, the Chairman of Hindu publications did not have the locus standi to make his submissions before the Court and he was a rank outsider insofar as the present proceedings are concerned and therefore, the entire process adopted by the learned Magistrate while deciding the remand of the accused was not in accordance with law. 5.4 The learned Magistrate did not record the reasons for rejecting the remand as required under Section 167 (ii) of Cr.PC and as required by the Judgment of the Hon'ble Supreme Court in AIR 2014 SC 2756 [Arnesh Kumar Vs. State of Bihar]. 5.5 The learned Magistrate was not clear about the decision taken by him, since on the one hand, the learned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Freedom of Press and whether the materials prima facie constituted an offence under Section 124 of IPC. 8. Mr.P.Kumaresan, the learned counsel focused his submissions on the power of remand and the various legal provisions under the code of criminal procedure which governs the same. 9. Mr.P.T.Perumal, learned counsel made the following submissions :- 9.1 The entire criminal proceedings against the respondent is attended with malafides and a conscious attempt has been made to curb the freedom of press. 9.2 The respondent at the time of his arrest was not informed the grounds of arrest and he was not permitted to meet any advocate and there was a complete violation under Section 41 B and 41-D of the Code of Criminal Procedure, 1973. 9.3 The arrest intimation form that was given to the respondent did not contain the name of the police station which is carrying out the arrest, the materials seized and virtually the intimation form itself was blank on material particulars. 9.4 The entire reading of the complaint does not anywhere reveal about the fact as to whether His Excellency the Governor of Tamil Nadu read this article or he was explained about the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and others who had gathered in the Court at the time of hearing. He did not make any submission on his own. The learned Magistrate himself called upon Mr.N.Ram and invited his opinion as to whether the provision under Section 124 of IPC was applied against any publication in the past. On being called upon to give his opinion as a Senior and renowned Journalist, Mr.N.Ram, expressed his opinion in the Court. 9.12. The learned counsel would submit that inviting Mr.N.Ram and seeking his opinion is very much within the powers of the Court and there is no bar in law to seek for such an opinion. In order to substantiate his submissions, the learned Counsel brought to the notice of this Court Section 32 of the Advocates Act, 1961 and the judgment of the Hon'ble Supreme Court in 1978 (2) SCC 165 [ Harishankar Rastogi Vs. Girdhari Sharma and another]. 9.13. The learned counsel also read the relevant portions of all the publications and submitted that Nakkeran as an investigative journal has to explore, in order to bring out the truth and in this regard, various persons were interviewed by the reporters and materials were collected based on their statements. All these materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions under Section 59 of the Code of Criminal Procedure. In order to substantiate his submission, the learned counsel relied upon the judgment of the Bombay High Court in [Assistant Collector of Customs R I (P), Bombay Vs.Shri Shankar Govardhan Mohite and others] reported in 1988 Cri LJ 624. 10.4. The police miserably failed to comply with the directions given by the Hon'ble Supreme Court in [D.K.Basu Vs. State of West Bengal] reported in 1997 (1) SCC 416 and also the statutory requirements under Sections 41, 41A, 46, 50, 50A, 51 of the Code of the Criminal Procedure. 10.5 The learned counsel in order to substantiate his arguments in support of the impugned order passed by the learned Magistrate, relied upon the following judgments: i. 1997 (1) SCC 416 [D.K.Basu Vs. State of West Bengal] ii. 2008 Cri LJ 1998 [Sanaual Haque Vs. State of Uttar Pradesh and another] iii. 2014 SCC online All 895 [Surendra kumar Sharma Vs. State of Uttar Pradesh and 2 others] iv. 2014 SCC online All 2346 [Sathish Kumar and 4 others Vs. State of Uttar Pradesh and 3 others] v. Crl.A.No.1572 of 2012 [Manubhai Ratilal Patel Tr.Ushaben V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied his mind regarding the materials available on record while rejecting the remand of the respondent? c. Whether a 3rd party is entitled to make his submissions before a Court of law and how far the Court can entertain a 3rd party to participate in Judicial proceedings? d. Whether considering the submissions made by the 3rd party in this case will amount to extraneous consideration while deciding the remand of the respondent? e. Whether the procedure adopted by the learned Magistrate, who on the one hand rejected the remand of the respondent and on the other hand directed the respondent to execute a bail bond, by itself shows uncertainty in the mind of the Magistrate and consequently, will amount to non-application of mind? f. Whether the learned Judicial Magistrate has given sufficient reasons in the impugned order while rejecting the remand of the respondent ? 16. Discussion on Issue a i. Section 41 of Cr.PC empowers the police officer to arrest a person without an order from a Magistrate and even without a warrant if the requirements stipulated in the said section is satisfied. Since arrest directly curtails personal liberty of an individual and str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers or arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41 CrPC confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force to the other governmental agencies also to which a reference has been made earlier. 38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. This judgment was passed on 18.12.1996. Subsequently, the legislature thought it fit to amend the code of criminal procedure and inserted Section 41-A to 41-D by Act 5 of 2009 and codified the various procedures to be followed by the Police and the rights that are available to the accused persons at the time of arrest. Section 46 of the Cr.PC also provides for the manner in which the arrest has to be made. Section 50 of the Cr.PC provides for the right of the person arrested to be informed about the grounds of arrest and the right to bail. Section 50-A makes an obligation to the police making the arrest to forthwith inform regarding such arrest and place of arrest to a nominated person. iii. The arrest intimation form that was issued by the police to the arrested person viz., the respondent has been filed before this Court. This rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Criminal Procedure. 17. Discussion on Issues b f i. A person arrested without a warrant by the Police Officer has to be produced within 24 hours to the nearest Magistrate, if he is not able to complete the investigation within that time, as per the mandate under Section 57 of Cr.P.C. This is where the provisions of Section 167 of Cr.P.C comes into play. While considering the application for remand, the learned Magistrate must be first satisfied that the arrest made is legal and in accordance with law. The Magistrate has to get acquainted with the progress of investigation which would appear from the case diary. Since remand is a fundamental judicial function of a Magistrate, the Magistrate has to satisfy himself that there are reasonable grounds therefor and that the materials placed before him justify the remand of the accused. While remanding the accused, it is obligatory on the part of the Magistrate to apply his mind to the facts of the case and not to pass remand order automatically or in a mechanical fashion. ii. The remand of a accused person may be required for various purposes. The accused may have to be questioned in detail regarding various facet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC. 9. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 10.Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as follows: 41-A. Notice of appearance before police officer .- (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 3.The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 4.The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 5.The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the case . In India, Third Report of the National Police Commission at p. 32 also suggested: An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances: (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims. (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines . 18. The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements: 1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. 2. The police officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. 20. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals. These requirements are not exhaustive. The Directors General of Police of all the States in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody and may release the accused on personal bond with or without sureties after taking an undertaking from the accused to appear before the investigating officer or the Court when required. iii) 2014 SCC online All 2346 (Satish Kumar and 4 others v. State of Uttar Pradesh and 3 others) and the relevant portions of the judgment is extracted hereunder: It is apparent from the record that if the allegations are proved, the maximum sentence that can be awarded is 7 years. Accordingly, in view of the ammendment made in the Cr.P.C. vide Act No. 5 of 2009 and notified on 01.11.2010, where it has been provided in Section 41(1)(b) Cr.P.C. that a person against whom credible information of being involved in a cognizable offence punishable with imprisonment of 7 years or less is reported to the police officer, the accused can only be arrested if the police officer is satisfied that: (a) there is probability of the accused committing another offence, (b) for proper investigation of the offence, (c) to prevent such person from causing the evidence of the offence to disappear or his tampering with the evidence in any manner, (d) to prevent such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following principles emerge governing the arrest and remand of an accused person a) Where the offences alleged carry a punishment of up to seven years or below, the police officer is under a statutory obligation to follow the edict of Section 41(1)(b) of the Cr.P.C. After the 2009 Amendment (vide Act 5 of 2009) to Section 41 of the Code, mere satisfaction of the police officer that there is a reason to believe that the accused has committed an offence will not suffice to effect arrest. The police officer must also demonstrate that a need for arrest has arisen by showing that the case falls within any of the limbs under Section 41(1)(b)(ii). In other words, the satisfaction of the police officer that there exists reason to believe that the accused has committed the offence must be coupled with one or more of the conditions set out in Section 41(1)(b)(ii) viz., a) that arrest is necessary to prevent the accused from committing any further offence or b) for proper investigation of the offence or c) to prevent the accused from tampering with the evidence or d) to prevent the accused from winning over witnesses through inducement or threat or e) to secure his presence before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that arrest is necessary. Even in cases of this eventuality, the conditions precedent for arrest as envisaged under Section 41 Cr.P.C must be complied with. h) The power to arrest is statutorily granted in aid of investigation. The five contingencies set out in Section 41(1)(b)(ii) of the Cr.P.C clearly demonstrate that arrest is to be effected only where it is necessary to do so for proper investigation of the case or when there exists grounds to believe that the accused may resort to one or more of the acts specified in Section 41(1)(b)(ii) (a),(c),(d) and (e) of the Code. In cases falling within the ambit of Section 41(1)(b) of the Code, if the police officer requires the presence of the accused for interrogation he shouldfirst resort to the procedure under Section 41-A of the Code, unless there is reason to believe that one or more of the contingencies set out in Section 41(1)(b) (ii) exist necessitating arrest. i) A police officer must not resort to the power of arrest under Section 41 Cr.P.C merely because it is lawful to do so. The existence of the power of arrest is one thing and the justification for its exercise is quite another. Time and again the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the fact that investigation cannot be completed within 24 hours. The Magistrate is, therefore, required to peruse the report of the police, containing the checklist and the reasons and materials forwarded by the police officer, and record its satisfaction thereon, before authorizing detention. n) While exercising jurisdiction to remand under Section 167 Cr.P.C the Magistrate is not required to write an elaborate order granting or refusing remand. However, as the Magistrate acts judicially in deciding an application for remand, he is required to briefly set out his reasons.In the event of a challenge before a superior forum this would enable the Court to judicially review the order to see that discretion under Section 167 Cr.P.C has been exercised within the bounds of the law. The practice of passing non-speaking orders of remand and mechanically extending the same is illegal and must be avoided. o) Failure to comply with the directions aforesaid shall apart from rendering the Police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court. p) Authorising detention without recording reasons as aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that neither criminal force nor assault could be said to have occured by publishing a post on facebook, however malicious it may be. That is the reason why the learned counsel appearing for the respondent would submit that the publication if it is construed as malicious and harms the reputation of His Excellency the Governor of Tamil Nadu, at the best can only attract the provisions of Section 499 of IPC punishable under Section 500 of IPC for defammation. 22. While such a fundamental question as to whether an offence under Section 124 of IPC looms large, the petitioner police should not have resorted to arrest on 09.10.2018, the very next day after registering the FIR. The learned Magistrate was therefore right in stating that there is no sufficient material to justify the remand of the respondent. 23. In this case, the publication is said to have been made from April to September 2018. The petitioner police is not able to demonstrate as to how these publications are preventing His Excellency the Governor of Tamil Nadu from exercising his lawful powers and duties and in what manner it has overawed the Governor. Except the ipse dixit statement made in the complaint, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And Anr] 1978 2 SCC 165. The relevant portion of the judgment is extracted hereunder :- Having regard to this conspectus of-considerations I hold that a private person, who is not an advocate, has no right to barge into Court and claim to argue for d party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. In the present case I have noticed the petitioner and his friend who is to represent him, come together with mutual confidence. The party somehow has not shown sufficient confidence in advocates he has come by. This bodes ill for him. I should have suspected the association of the private person as having sinister implications of exploitation of a guileless party but suspicion by itself should not be the basis of a conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .PC. ii It will be relevant to extract the provisions of Section 59 of Cr.PC. 59. Discharge of person apprehended . No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. iii. It will also be relevant to rely upon the judgment reported in [Assistant Collector of Customs R I (P), Bombay Vs.Shri Shankar Govardhan Mohite and others] reported in 1988 Cri LJ 624. 7. Shri Merchant further submitted that the rearrest of the respondents 1 to 3 on 30th July, 1987 was itself illegal inasmuch as the order of discharge passed by the learned Additional Chief Metropolitan Magistrate on 29th July, 1987 amounted to an order of bail and, in view of S. 59 of the Cr.P.C., the rearrest of the respondents 1 to 3 is illegal. In order to appreciate this contention, it may be convenient to reproduce S. 59 of the Cr.P.C. which reads as under :- No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. 8.According to Shri Merchant, the words under the special order of a Magistrate shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words at all. . The rule is to be made use of only where the language of the statute under consideration is somewhat vague or uncertain ..... 10. All that Section 59 of the Cr.P.C provides is that once the accused is arrested by the Police Officer, he shall not be dicharged except on his own bond, or on bail, or under a Special order. If the arrest and detention of the accused cannot be said to be illegal, he can be discharged either on his own bond, or on bail. However, if the arrest is found to be illegal, as in the present case, there would arise no question of releasing the accused on his own bond or on bail and the only proper order would be an order of discharge, ie., the order of his release by passing of the Special order, as contemplated in the latter part of Section 59. I find no ambiguity in construing the phrase under the Spcial order of a Magistrate so as to take resort to the principle of 'Ejusdem generies' as submitted by Shri Merchant. iv. From the above judgment, it is clear that once an accused is arrested by a police officer, he shall not be discharged except on his own bond or on bail or under a special order. If the arrest and det ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
