TMI Blog2022 (2) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... able offences. In the case of a non-cognizable offence, however, the power to investigate such offence requires prior order of a competent Magistrate. A conjoint reading of Sections 50 and 50A Cr.P.C. reveals that once the police officer arrests a person it is obligatory on his part to inform the arrestee the full particulars of the grounds of arrest and inform about arrest and place where he is being held to his friends, relatives or such other persons as may be disclosed or nominated by him - it can be inferred that assuming that the detenue was picked up from his residence at Tingkhong, Dibrugarh for the purpose of interrogation or investigation by the police, it neither amounted to arrest nor detention, nor taking into custody as certainly enough there was no legal surveillance or restrictions on the movements of the detenue in any manner during the period of his voluntary co-operation in preliminary enquiry in the said case within the meaning and scope of Section 46 Cr.P.C. Where the detenue voluntarily accompanied with police to assist in investigation, there was no obligation on the part of the investigating police officer to ensure compliance of the obligations, provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant : A.K. Bhuyan For the Respondent : D. Nath, Sr. G.A. and M. Phukan, PP JUDGMENT Ajit Borthakur, J. (THROUGH VIRTUAL MODE) 1. Heard Mr. A.K. Bhuyan, learned Counsel appearing for the petitioner. Also heard Mr. D. Nath, learned Sr. Govt. Advocate, Assam appearing for the respondents/State of Assam and on request, Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court. 2. The scanned copy of the record of G.R. Case No. 19416/2021 along with the case diary of Fatasil Ambari P.S. Case No. 817/2021 is placed before the Court in sealed cover. RELIEF SOUGHT: 3. By this petition under Article 226 of the Constitution of India, the petitioner, who is the son of a detenue namely Shri Pradip Buragohain, is seeking direction to forthwith set his father at liberty from illegal detention and to issue a writ in the nature of Certiorari declaring the remand order, dated 17.12.2021, passed by the learned Sub-Divisional Judicial Magistrate (S), Kamrup (M) at Guwahati in connection with Fatasil Ambari P.S. Case No. 817/2021 and all its consequential remand orders as unconstitutional and illegal with adequate compensation. PETITIONER'S GRIEVANCES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts No. 1 and 2/the State contested the writ petition by filing an affidavit, dated 29.12.2021, on the grounds, inter-alia, that the petition is bad for non-joinder and/or misjoinder of necessary parties as the Chief Secretary to the Govt. of Assam and Commissioner and Secretary to the Govt. of Assam are impleaded, who are only administrative heads, as respondents although the allegations are made primarily against the police officer responsible for investigation of corruption allegations in Fatasil Ambari P.S. Case No. 817/2021. The writ petition has been filed alleging illegal detention of the petitioner's father although he has been detained in judicial custody after due remand order of the Court and no application for his regular bail has been preferred and thus, evaded the effective alternative remedy. It is denied that the petitioner's father was arrested on 15.12.2021 at about 10.30 p.m. rather on 15.12.2021 at about 11.25 p.m. he on his own volition came with the police party to Guwahati co-operating in the preliminary investigation in connection with the aforesaid criminal case promising to provide vital documents in that regard which were stated to be available at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner's material contentions made in the writ petitions have not been specifically denied by the respondents/State in their affidavit-in-opposition rendering his father's detention illegal. Mr. Bhuyan emphatically submitted that the petitioner's father's detention has been made in utter violation of Article 21 of the Constitution and the law laid by this Court in Kamal Dutta Vs. The Union of India reported in (2016) 1 GLR 539 and further, the mandatory provisions of Cr.P.C. referred to in the petition itself. Even the learned S.D.J.M. (S), Kamrup (M) at Guwahati despite having noticed the legal lapses apparent on documents produced by the investigating officer at the time of producing the detenue on 17.12.2021 after two days of his wrongful detention since 15.12.2021 in police custody failed to exercise his duty in law to take immediate steps under Section 156(3) and Section 190(1)(C) Cr.P.C. and illegally remanded him in police custody for 2 (two) days vide order, dated 17.12.2021. In this context, Mr. Bhuyan submitted that police custody does not mean custody after formal arrest of a person, but as soon as he comes into the hands of a police officer as held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior Government Advocate, appearing for the respondents/State, contended that the instant writ of Habeas Corpus is not maintainable as the detenue was produced before the learned Judicial Magistrate after effecting arrest complying with all necessary formalities within the prescribed period of 24 hours and presently, he is in judicial custody as per the remand order of the Court. Mr. Nath, referring to the mandates of Article 22 of the Constitution and Sections 57 and 167 Cr.P.C., relating to arrest and custody, submitted that on reading of the aforesaid provisions, makes it amply clear that an arrested and detained person needs to be produced before the nearest Magistrate within a period of 24 hours, excluding the time necessary for the journey. Section 57 Cr.P.C. also mandates the same in regard to an arrested person and such arrest is stated to be preceded by detention. Likewise, Section 167 Cr.P.C., Mr. Nath submitted, requires the order of a Magistrate authorising detention of an arrested person, if investigation cannot be completed within 24 hours. According to Mr. Nath, Section 57 Cr.P.C. does not come into operation until a police officer makes an arrest of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.S. Case No. 817/2021. Accordingly, on the following day, that is, on 17.12.2021 at about 2.30 pm, he was produced before the learned Judicial Magistrate at Guwahati, before expiry of the mandatory stipulated period of 24 hours as per the requirement of Section 57 or 167 Cr.P.C. In this context, Mr. Nath emphatically submitted that the veracity of the relevant entries made by the impartial Investigating Officer of the case will certainly establish these material facts and, as such, this Court may take the aide of the judicial case record and the police case diary to ascertain those facts. 14. So far the question of transit remand of the detenue is concerned, Mr. Nath clarified that on 15.12.2021 the detenue was not arrested. According to Mr. Nath, the transit remand is usually sought when the journey would exceed the limit of 24 hours deadline as set forth in Section 167 Cr.P.C. to produce before a Magistrate, but here is the case where neither the detenue was arrested on 15.12.2021 nor the transit period exceeded 24 hours. [BY LEARNED PUBLIC PROSECUTOR] 15. Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court, who appeared on request, submitted in short support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uparna Gogoi to investigate the case and further, the Deputy Commissioner of Police, West Guwahati Police District, by an order dated 07.12.2021 vide Memo No. DCP/WGPD/CB/SIT/2021/2431 constituted a Special Investigating Team (SIT) consisting of 4(four) police officers to apprise the progress of investigation of the case to him daily and 'complete the investigation at the earliest'. OBJECT OF WRIT OF HABEAS CORPUS: 19. It may be pointed out that the object of issue of writ of habeas corpus is to see that no person is deprived of his liberty except in compliance with the authority of law and if the custody is not in accordance with law, then to release him. In Maneka Gandhi Vs. Union of India, reported in AIR 1978 SC 597, the Hon'ble Supreme Court has given a wide interpretation of the concept of liberty by holding that procedure established by law in Article 21 of the Constitution means fair and reasonable procedure. It has been held, in reference to the mandate of Article 21, that it envisages reasonable, fair and just procedure . The constitutional safeguard of the individual liberty is rooted in Article 14 of the Constitution which envisages guarantee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe-- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)]. 21. From the above, it is noticed that Article 22(2) of the Constitution mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be involved in cognizable and non-cognizable offences. In the case of a non-cognizable offence, however, the power to investigate such offence requires prior order of a competent Magistrate. A conjoint reading of Sections 50 and 50A Cr.P.C. reveals that once the police officer arrests a person it is obligatory on his part to inform the arrestee the full particulars of the grounds of arrest and inform about arrest and place where he is being held to his friends, relatives or such other persons as may be disclosed or nominated by him. In Sheela Barse (supra), the Hon'ble Supreme Court held these rights of the arrestee to be mandatory in the light of the implication of Article 21 of the Constitution. It may be pointed out that the directions given by the Hon'ble Apex Court in D.K. Basu Vs. State of W.B. received the statutory recognition by enacting Sections 41A, 41B, 41C and 41D Cr.P.C. and as such, those directions are not separately discussed herein. 25. In the above context, however, the Hon'ble Apex Court in Joginder Kumar Vs. State of Uttar Pradesh, reported in AIR 1994 SC 1349 observed- No arrest can be made because it is lawful for the Police Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police office 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 of Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents No. 1 and 2 and further, the prima facie evidence available on the case record as well as the case diary reveal that on 15.12.2021 at 11.30 p.m., the detenue, in fact, voluntarily extended his cooperation in investigation by assuring the investigating officer, Inspector Debyajyoti Phukan, to provide the relevant documentary evidence available in his custody at his residence at Guwahati in connection with the said case and accordingly, the detenue voluntarily accompanied with the police to Guwahati. 29. As pointed out above, the police party headed by Inspector Debyajyoti Phukan and the petitioner's father arrived at Fatasil Ambari P.S. at Guwahati on the following day, that is, on 16.12.2021 at 10 a.m. The investigating officer, the case diary shows, asked him to go to his residence at Guwahati for refreshment and report back at 11 a.m. with the relevant documents which he had stated to be available in his custody. This anterior part of interrogation on voluntary co-operation of the detenue undoubtedly fell within the expression 'investigative detention' under preliminary enquiry, which is lawful as justified by the Hon'ble Supreme Court in Jogind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 24 hours of his arrest. There is no confusion, if one looks at the records, that in anterior period to the detenue's formal arrest, he was neither detained nor arrested within the implications of Section 41 or 41B Cr.P.C. Therefore, it cannot be said that the detenue's right under Article 22(2) of the Constitution read with Sections 56 and 57 Cr.P.C. was violated. THIRD ISSUE: [NO ILLEGALITY IN REMAND ORDER] 35. With regard to the petitioner's prayer for declaring the impugned remand order of his father dated 17.12.2021 passed by the learned Judicial Magistrate, Kamrup (M) at Guwahati in connection with the said case and all consequential remand orders as unconstitutional and illegal, this Court finds it appropriate to extract the aforesaid order hereinbelow- 17.12.2021 Accused person Sri Pradip Buragohain is produced before me in connection with the instant case. I have gone through the forwarding report and the other documents annexed along with. The offence alleged against the accused person is registered under Section 120B/406/409/420/469/34 IPC. On being asked, the accused persons replied that he has engaged an advocate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s verbally stated that he had detained the accused person on 15-12-2021, but have arrested him on 16-12-2021. From plain reading of the arrest memo it appears that the accused is produced before this Court within 24 hours of the arrest. However, the submission made by the I.O. points towards a different picture. Section 57 of the Cr.P.C. states that no police officer shall detain in custody a person arrested without warrant for longer period than under al the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 57 Cr.P.C. in no uncertain terms states that an arrested person is to be produced before the Magistrate within 24 hours of the arrest unless there is a special order by concerned Magistrate. However, section 57 Cr.P.C. is conspicuously silent as to effect of non production of the accused within 24 hours of arrest on the validity of the arrest itself. The lapse on the part of the I.O. do not ipso facto dismantles the merits of the case and enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as phones, laptops etc. that may lead to unearth the nexus has to be recovered and thoroughly analysed. 4. Also, it has been learnt during the course of investigation that the arrested person has many residence/offices at a number of places which has to be searched during the course of investigation for recovering of documentary evidences. 5. It is necessary to know the details of monetary transactions involved in the case, in both cash and bank accounts of the person as it is evident that there has been huge amount of transactions in the said case. 6. To know about the money trail. Therefore, I pray your honour may kindly allow 7 days police remand. Under above facts and circumstances stated above I pray your honour may not kindly enlarge the arrested accused persons on bail at this stage of investigation. As his release on bail may hamper in investigation by tempering witnesses as well as hamper the investigation of the case. The arrested accused persons already been medically examined and ground of arrest already been communicated them and their family members by issuing notice, arrest memo etc. 37. In Arnesh Kumar (supra), the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. 8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant 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. 38. A perusal of the above impugned order, it is revealed that the learned Judicial Magistrate on being satisfied that the detenue on his own engaged a counsel to defend his case and that his arrest and detention in connection with the said case was justified and further, that the provisions contained in Sections 50, 50A and 57 Cr.P.C. were duly complied with granted his police custody under Section 167(2) Cr.P.C. for 2(two) days subject to the guidelines provided in D.K. Basu case (supra). The records reveal that the detenue was subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during investigation, but, it is often unfortunately noticed that those mandated guidelines are not punctually observed may be due to want of proper and manifested guidelines of the State and effective routine training on laws, general and special statutes and also lack of effective supervision on investigations. Time has also come to consider whether steps have been initiated to make the younger generation aware of the laws more particularly, on the Indian Penal Code, The Protection of Children from Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act, The Consumer Protection Act etc. to make them good citizens in future by making them to study as a subject at their tender age. SUGGESTIONS: 41. Therefore, the respondents more particularly the respondent No. 2 is suggested that for easy ready reference of the investigating officers appropriate guidelines and check lists etc. in respect of general and special statutes may be issued to them strictly following the Hon'ble Supreme Court guidelines and other relevant laws at the earliest possible. 42. Accordingly, the writ petition stands disposed of. 43. Furnish a copy of this judgment and order to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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