TMI Blog1963 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... r want of evidence. Twenty-three days later, the complainant lodged a complaint on 1-1-62 with the allegations that without any rhyme or reason he had been put under arrest and detained under unlawful custody. He, however, admitted that the accused persons had no previous enmity with or ill will against him. The complainant further admitted that his uncle had gone to the thana that very day (15-10-61) at about 3 P. M., but he was turned away by a police constable. However, no explanation has been furnished as to why any telegram or information about his unlawful detention was not sent to the District Magistrate, the Superintendent of Police or to higher authorities. 3. All the accused persons admitted that they had effected the arrest of the complainant-appellant on 15-10-61. But they denied that the complainant was arrested at his shop. According to the defence, the complainant was arrested in the market place where he was found publicly inciting communal feelings on the ground that the Hindus of Aligarh and Baraut had committed acts of atrocity upon the members of the Muslim community. One of the accused-respondents, namely Ram Swarup Head Constable, stepped into the witness b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons had collected on the spot. It was at that stage that H.C. Ram Swarup arrested the complainant under Section 151 Cr. P. C. and took him to the thana, where he lodged a report In his cross-examination D.W 2 Ram Swarup admitted that the persons, who had collected around him, were all Hindus, but none had come armed with lathis etc. He strongly repudiated the suggestion that the complainant was arrested from his dispensary, and reiterated that he was arrested in the market place as described above. 6. Ext. Kha 1 is the copy of the report lodged at the thana by Ram Swarup Head Constable regarding the arrest of the complainant. Its perusal shows that on hearing the outcries raised by the complainant the public had become enraged, as a result whereof there was imminent apprehension of the breach of public peace and tranquillity (Jis se ki fauri nuqse aman ka andesha ho raha tha). It was then that he put the complainant under arrest and brought him to the thana, because by the action of the complainant there was imminent danger of breach of peace in present and future. (Chunki is fel se fauri nuqse aman ka andesha hai aur ayenda bhi andesha nuquse aman hai). It is also signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 163-A I. P. C. which runs as follows; Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise promotes or attempts to promote feelings of enmity or hatred between different classes of the Citizens of India, shall he punished with imprisonment, which may extend to two years, or with fine, or with both. Section 158-A I. P. C. is not a cognizable offence and, therefore, the accused persons had no right or Jurisdiction to arrest and detain the complainant. Moreover, there is not the least suggestion in the deposition of D.W. 2 Ram Swarup Head Constable that the commission of the apprehended offence on the part of the complainant could not be otherwise prevented. On the other hand, what we find is that proceedings under Section 107/117 Cr. P. C. alone were taken against the complainant. The report which was lodged by Ram Swarup Head Constable soon after the arrest of the complainant as well as his deposition also show that the utterances of the complainant were likely to result in the breach of the peace and disturbance of the public tranquillity. There is no provision either in the Indian Penal Code or Cri P. C. authorising a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that conclusion. In support of this contention Sri Darbari has placed reliance upon the case of In re Om Prakash Gupta AIR 1949 Mad 744 wherein it was observed: Section 151 authorises a police officer to arrest if he had knowledge that the person sought to be arrested entertained a design to commit a cognizable offence. It must also further appear to file police officer that the commission of the offence could not be otherwise prevented, Both the knowledge and the appearance are those of the police officers concerned and are not capable of an independent investigation. It is not open to the High Court exercising its jurisdiction under Section 491 to go into the question whether, in fact, the police officer was justified in concluding that the person sought to be arrested was about to commit a cognizable offence and whether the police officer was equally justified in concluding that there were no other means by which the perpetration of the offence could have been prevented. The discretion is vested solely in the police officer and that discretion cannot be questioned or canvassed in a proceeding under Section 491. The object of the section is to prevent file commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case AIR 1949 Mad 744 the Inspector of Police concerned had filed his own affidavit saying that he had arrested the petitioner of that case after satisfying himself that the petitioner was designing to commit a cognizable offence . Moreover on the face of the proceedings of that case there was nothing to indicate that the detention or custody of the petitioner was illegal or improper. Likewise in A. K. Gopalan's case AIR1962Ker215 it was observed by Govinda Menon, J. that under the circumstances of that case the question whether the police officer had the requisite knowledge and whether the commission of the designed offence could have been prevented otherwise than by immediate arrest were matters which were not capable of an independent investigation and therefore the court could not substitute its own opinion as to whether the commission of the offence could have been otherwise prevented. It was further observed that the discretion was mainly with the police officer, and unless there was clear evidence that it was fraudulent exercise of the power vested in the officer, his discretion could loot be questioned by the court. Thus, the jurisdiction of the court to go into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. P. C. and can be exercised only in cases of cognizable offences, where their commission cannot be otherwise prevented. It is a well established principle of interpretation of statutes that as far as possible the various enactments have to be read in harmony with one another. Therefore the provisions of Section 151 Cr. P. C. and Section 23 of the Police Act have to be read together. With greatest respect to the learned Judges who decided the cases of Nga Kala 35 Ind Cas 523: (AIR 1917 Low Bur 152) Thakuri, (Supra) it appears that they did not keep in view the above principle of law of interpretation of statutes, when they held that the Police derived their power of preventive arrest not only from the Code of Criminal Procedure but also from Section 23 of the Police Act. 15. At any rate, whatever may have been the state of law before, now all laws are subservient to the Constitution of India. After the commencement of the Constitution, the liberty of a citizen of India has to be jealously guarded and preserved. Article 21 of the Constitution of India enjoins no person shall be deprived of his life or, personal liberty except according to procedure established by law. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uns as below: Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be Justified by law, in doing it. In the instant case, apart from giving their statements as accused, one of the accused persons Ram Swarup Head Constable had also appeared as a defence witness under Section 342-A Cr. P. C. The only justification pleaded by him and other accused persons is that they were justified by law in arresting the appellant; no mistake of fact or good faith has been pleaded or made out by them. Section 79 I. P. C. has, therefore, no application to the present case. 17. In view of the above discussion, I allow the appeal, set aside the order of acquittal of the respondents recorded by the Magistrate and convict them under Section 342/109 I. P. C. I sentence Ram Swarup Head Constable (the leader of the Police party) to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for a period of one month. The other respondents Ali Abbas, Mamud Khan and Amar Nath Constables are, however, sentenced to pay a fine of Rs. 50/- each and in default to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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