JUDGMENT Palok Basu, J.
1. In all the aforesaid four cases one of the points argued was that at the time of arrest of the petitioner in each case the ground of arrest and full particulars regarding it were not disclosed and, therefore, Article 22(1) of the Constitution of India stood violated. The other question in all the four cases was whether the petitioner was detained for a period more than necessary and in some beyond 24 hours and, therefore, Article 22(2) of the Constitution of India was violated. On these two grounds it was argued that the continued detention of the petitioner in each case was illegal. Some questions of fact were raised relating to each case which shall be dealt with at the relevant place. It may be noted here that in all the cases counter affidavits by the relevant opposite parties have been filed to which a rejoinder has also been filed by the petitioner and, therefore, as prayed by learned Counsel for the parties, all the petitions are being finally disposed at the admission stage. Sri R.P. Singh, Sri S.V. Goswami, Sri Prem Prakash Yadav and Sri D.S. Misra have been heard on behalf of the petitioners in each case respectively while Sri Shivaji Misra has appeared on behalf of the opposite parties, all of whom have been heard at sufficient length.
2. The facts in each case as pleaded by the respective sides are noted below:
(1) Sher Bahadur Singh's petition.
3. From the statement of the cases contained above the fact is apparent. The petitioners in each case have already been remanded to judicial custody when they were produced before the Magistrate concerned. The question posed was that since presently there is a valid order remanding them to judicial custody, even if there was a prior infringement either of Article 22(1) or 22(2) of the Constitution or Section 50 of the Cr. P.C, the said illegality stood cured and in any case has become irrelevant.
4. It may be stated here that all the learned Counsel on behalf of the petitioners have argued that once there was a breach of Article 22 of the Constitution or for that matter Section 50, Cr. P.C. the subequent order of remand passed by the Magistrate will not cure the illegality and a writ of Habeas Corpus should issue.
5. It has not been disputed that the proof of compliance of Article 22 of the Constitution of India in all the cases of arrest may come only from the entries made in the general diary regarding the arrest in order to prove that the particulars and grounds of arrest were disclosed. It is common knowledge that any accused who is arrested is likely to raise this question of non-compliance of either Article 22 of the Constitution of India or Section 50, Cr. P.C., and to always allege, howsoever incorrect it may be, that he has not been told the grounds and particulars of the arrest. Similarly, in a matter where a cituzen has been arrested without disclosing the grounds or particulars, the arresting officer in all likelihood would assert that he has complied with those requirements and the allegations to the contrary by the captive is wrong. Under the circumstances, the only proof of compliance of the aforesaid two provisions will be a complete note in the general diary as soon as the arrested person is brought to the police station concerned specifying therein the actual compliance in so many words as envisaged by the aforesaid provisions having been done, Prima facie that entry may be taken to be a proof Of such compliance in absence Whereof it will be difficult to deny the averments on behalf of the arrested person that there was infact no compliance of Article 22 of the Constitution of India and Section 50, Cr. P.C.
6. Yet another question of equal importance arose. Assuming a writ of Habeas Corpus is issued directing his release after holding that there was no compliance of Article 22(1) of the Constitution of India and/or Section 50, Cr. P.C. soon after the arrest of the person concerned even if he was remanded to judicial custody later on, how could the attendance of released accused be procured at the time of trial or committal proceedings. This question, however, will arise only when subsequently a chargesheet is filed against such an arrested person. If final report is filed after investigation nothing further requires to be done because the accused stands already released as he shall not have executed any bond/bail bonds for his appearance in any court. But if a chargesheet is filed then cognizance will be taken by the Magistrate under Section 190, Cr. P.C. and once he takes cognizance it will be followed by summons or warrant as the case may be. In the event of arrest of an accused in pursuance of such cognizance so released person shall have to appear before the Court concerned and provisions of Chapter-XXXIII, Cr. P.C. relating to bail and filing of bonds will be applied.
7. Therefore, in a given case if non-compliance of Article 22 of the Constitution of India or Section 50, Cr. P.C. is held exist, the trial of the case would not be frustrated if the arrest is held on that limited ground to be illegal. It is true that in some cases where the arrest itself may give rise to an offence which may be the reason of arrest, some difficulty may arise. Since in the present cases none of the facts attracts such a problem, the said hypothetical question is left aside.
8. Long arguments on the Constitutional aspects were made by the learned Counsel for the petitioners. It may be stated here that three leading cases on the point are Ram Narain v. State of Delhi, AIR 1953 SC 277 : 1953 Cri LJ 1113), Madhu Limaye v. Superintendent, AIR 1969 SC 1014 : (1969 Cri LJ 1440) and Bhim Singh v. State of J&K., AIR 1986 SC 494: (1986 Cri LJ 192).
9. Both the contesting sides relied upon certain observations existing in these cases. However, reliance was also placed on the Division Bench decisions of this Court reported in AIR 1954 All 601 : (1954 Cri LJ 1317) and AIR 1956 All 56 : (1956 Cri LJ 13). Sri D.S. Misra has relied upon several other decisions which, for the reasons appearing hereinafter are not being referred to.
10. Coming to the individual cases it may be noted that so far as Sher Bahadur, petitioner is concerned he was admittedly arrested by the police of Police-Station Colonelganj on 27-4-1992. In the initial counter affidavit filed by Balram Misra it was specifically stated that the petitioner was produced before the court of A.CJ.M. II Allahabad on 28-4-92 in case Crime No. 402/92, under Section 364, IPC and was remanded by him to judicial custody on the same date. This averment was specifically denied in the rejoinder affidavit. This was followed by another supplementary counter affidavit sworn by Balram Misra alleging that the petitioner was sent for remand in the court of II ACJM Allahabad on 28-4-1992 but could not reach the court earlier than 4-30 p.m. by which time the court had risen. The petitioner was thus brought back to the police station Colonelganj and was again produced on 29-4-1992 on which day a warrant for judicial custody was obtained and the accused was sent to the Central Jail Naini.
11. Consequently there is a vast difference between the affidavits filed attempting to show the remand orders of the petitioners. In support of the contention that the petitioner was produced before the Magistrate on 28-4-1992 a noting by the court Moharrir existing on some paper has been filed as Annexure SCAI to the supplementary counter affidavit referred to above. It bears no seal of any court and bears no number therefore no reliance can be placed on this paper in order to determine that the petitioner was in fact produced on 28-4-1992 before the Magistrate concerned because it was rightly pointed out by Shri R.P. Singh, Advocate, that even this report of the Head-Moharrir is dated 8-5-1992 i.e., when the petition was being heard.
12. No papers or entries from the general diary or case diary have been produced indicating compliance of Article 22(1) of the Constitution of India or the provisions contained in Section 50, Cr. P.C. The result, therefore, is that it cannot be said that the petitioner Sher Bahadui's detention in jail is proper or that there was a valid remand order. He has, therefore, to be released forthwith.
13. Coming to the cases of Mahendra Bhushan it may be stated here that there is no doubt that some telegrams were sent to some authorities telling them that Ashwani Kumar (accused-detenu) was arrested on 27-4-1992. This fact has, however, been denied by the State and it has been said that since the petitioner could foresee his arrest, the telegrams were sent in Peshbandi to save his own skin.
14. In this connection the other argument placed emphatically by Sri Goswami was that even if for some reason it is accepted that the petitioner was arrested on 30-4-1992, there is no valid remand order in favour of the petitioner and, therefore, he should be released forthwith.
15. On behalf of the State Photostat copy of the actual recovery memo prepared on 30-4-92 which bears the signature of the detenu accused Ashwani Kumar and of witnesses of the recovery indicates that when the petitioner was arrested he was told that his arrest is made in connection with case Crime No. 556/92, under Section 460, IPC. The recovery memo makes a specific reference in this regard which is quoted below :--
Gher Kar Karib 10-30 Baje Raat Us Vyakti Ko Pakar Liya Naam Pata Punchhne Par Apna Naam Ashwani Kumar Putra Mahendra Bhushan Srivastava Sakin 260 Colonelganj Bataya Yah Vyakti Mukadma Ilzam No. 556/92, under Section 460, IPC Men Prakash Main Aaya Hai Bajapta Hirasat Police Main Liya. Giraftari Ka Karan Bataya Tasalli Dekar Uprokt Ghatna Ke Bare Main Punchhne Par Bataya....
Thereafter the memo indicates that the detenu narrated the manner of arrest, loot and killing of the wife of Professor A.B. Lal Ex. Vice Chancellor of Allahabad University. He disclosed that cash amount of Rs. 1200/- and some ornaments were taken away after killing the helpless old lady. His share came to Rs. 300/- which he had received. From the back pocket he picked up Rs. 215/- saying that the said amount was thus kept by him out of which Rs. 85/- has been spent away. Towards the end of the document it is written that a copy of the recovery memo was handed over to the accused detenu and that he had signed the memo.
16. In view of the facts contained in the general diary of the police station concerned recorded in pursuance of the aforesaid recovery memo it is established beyond doubt that reasons for arrest of the detenu-accused Ashwani Kumar were disclosed to him when he was arrested. Consequently, in this case the compliance of the provisions contained under Article 22(1) of the Constitution of India and Section 50, Cr. P.C. has been made.
17. Coming to the question of validity of the remand granted, it may be stated here that SCAI indicates the making of the application for remand on 1-5-1992 by the police station colonelganj before the C.J.M. Allahabad. It is narrated therein that the investigation cannot be completed within 24 hours and, therefore, 14 days remand be granted. The Magistrate has consequently ordered that judicial remand from 1-5-92 to 14-5-1992 be allowed. In pursuance of the said remand order, the petitioner accused detenu Ashwani Kumar was sent to Naini Jail where he continues to be in detention. The second remand obtained from 14-5-1992 is borne out from the document filed as Annexure-SCA 3. It is true that in this document the date of arrest of the petitioner is written as 1-5-1992. It is rightly argued that this is a clerical mistake because it should have been shown as the date of earlier remand which was in fact granted on 1-5-1992. There would not have been any gain in putting the date 1-5-92 as the date of arrest when already the previous remand was obtained on 1-5-1992 alleging the arrest on the preceding day of 1-5-92. Consequently, it is proved beyond doubt that further remand of 14 days beginning from 14-5-92 to 28-5-92 has been granted lawfully by the Magistrate concerned.
18. In view of the aforesaid discussion none of the points canvassed on behalf of the detenu accused Ashwani Kumar in the petition filed on his behalf by Mahendra Bhushan can succeed. Consequently, Mahendra Bhushan's petition should fail.
19. Coming to the case of Israr Ahmad it has to be noted that telegrams had been sent on 8/9-4-1992 alleging that the petitioner was arrested by the police. It is rightly pointed out by the State that while in paras Nos. 2 and 3 of the Habeas Corpus petition it has been stated that the arrest was affected by S.H.O. Dhoomanganj Allahabad but the telegram was silent as to who had arrested the petitioner. It was again rightly pointed out that if it was a fact that on 8th/9th the petitioner Israr Ahmad had been arrested from his residence, there could have been no reason or justification for not filing the Habeas Corpus petition on any day between the 9th to 15th. If the theory of arrest as sought to be propound-ed by the telegram is to be believed then normally the action for moving the petition should have been taken much earlier than 16-4-1992.
20. Sri Prem Prakash Yadav has vehemently argued that how it could be that the writ petition was sworn in the early hours of 16-4-1992 and filed in this Court's Registry on 16-4-92 and entertained by this Court on 17-4-92 calling for counter affidavit. When the prosecution alleged the arrest of the petitioner Israr Ahmad on 16-4-92 at about 7-30 p.m. in a case Under Section 395/412, IPC and 25(1)(a) of the Arms Act of Police-station Attarsuiya?
21. From the papers made available to the court by Sri Shivaji Misra, learned A.G.A. it appears that the petitioner was not the only man arrested on 16-4-1992 in the aforesaid case crime No. 171 of 1991 but along with him another man namely Lalit Vikram was also arrested and from the possession of these two accused, property worth about 40.000/- was recovered. The petitioner has been kept in "Bapurdah" along with other accused who will be put up for identification soon by the witnesses of the case who had seen the accused committing dacoity at their house.
22. In this connection Sri Yadav emphasised that there appears something fishy in the police papers because initially Sri Indrajit Chaturvedi Station Officer Dhoomanganj has said in para 3 of the counter affidavit that he came to know of the arrest of the petitioner by the police of police-station Attarsuiya through the newspaper report whereas in subsequent counter affidavit he clarified that it was by mistake that the reference to the newspapers had been put in the original affidavit by some misunderstanding creeping either in the drafting or in the understanding of the conversation through which he had conveyed to the Govt. Advocate while drafting the counter affidavit. He has disclosed in the second affidavit that he was himself a signatory to the recovery memo which was prepared at the time of arrest of the petitioner. Sri Shivaji Misra, learned A.G.A. argued Vehemently that it may be his own personal mistake due to which the reference to the newspaper item has been put in by him while drafting the counter affidavit because the fact remains that in that very paragraph sworn in the original counter affidavit, it has been mentioned that the petitioner was arrested in the case Crime No. 171/191 of Police-Station Attarsuiya.
23. It is rightly argued on behalf of the State that there could be no justification or reason for Indrajit Chaturvedi swearing a false affidavit before this Court knowing fully well that he himself is a signatory to the recovery memos which disclosed that the petitioner was arrested in a case and loot-property was recovered from him in which he himself is a signatory. The explanation offered by the State that the news was also published in the local newspapers through which people of Allahabad came to know of the arrest appears to be a plausible explanation wrongly put and drafted in his original counter affidavit. It is impossible to believe that Indrajit Chaturvedi should have at one stage pleaded ignorance of the case and on the other should himself admit to be a recovery witnesses. Moreover there was nothing compelling for Sri Indrajit Chaturvedi not to take himself away from the making a witness in the recovery memo should he not been really a witness of recovery and arrest, and, if all papers were subsequently prepared, as was argued by Sri Yadav, there could be no reason why someone other than Sri Indrajit Chaturvedi may not have been made the witness of recovery. Consequently it has to be held that the arrest of the petitioner was in fact made on 16-4-1992 at 7-30 p.m.
24. It is true that this writ petition was filed on 16-4-92 in the Registry but the fact remains that some of the relations of the petitioner is working in the office of Govt. Advocate and is well aware of the procedure and the type of defence available in such cases to the accused who are arrested or may be arrested soon. It is admitted case that in the case crime number 171/91 P.S. Attarsuiya in which the petitioner has been arrested^ the police of Police Station Attarsuiya two other accused were arrested on 14-4-92 who had divulged the names of the petitioner and the co-accused Lalit Vikram. If that is so, the news of the arrest of those two accused namely, Lal Chand and Bablu on 14-9-92 must have spread like a wild fire in their own camp. Under the circumstances it was not impossible to conceive that a petition on behalf of the petitioner might have been moved on 16-4-92 in this Court by way of pre-arranged defence with the help of the petitioner's relatives.
25. There is another reason to hold that the petition moved on 16-4-92 was by way of self saving device. It was insisted that on 16-4-92 the information of filing of the writ petition had gone to the S.S.P. Alld. At 5 p.m. Pairokar of the police-station Dhoomanganj had carried this information to the said police station at that very hour. It is, therefore, argued by Shri Yadav that after this information was conveyed to the police-station Dhoomanganj they in order to make out a false case contacted the police of Police-station Attarsuiya, where the general diary entry could possibly have been made as it may have been unwritten, and, therefore, the arrest was shown through police station Attarsuiya by the officers concerned. This argument has a great fallacy and shows the method by which the petitioner has tried to hoodwink the actual position. It is impossible to believe that if the police of police-station Dhoomanganj would have actually come to know on 16-4-1992 at 5 p.m. that the petition had already been moved in the High Court about the arrest on 16-4-1992 of the petitioner, then they could have obviously shown the arrest at a point of time earlier than atleast 5 p.m. of 16-4-92. With all the machinery available, as was rightly argued by Shri Shivaji, Misra for the State it could have been thought proper by the police concerned to indicate the arrest of the petitioner at a point of time earlier than filing of the writ petition if they were to show a wrong arrest. Consequently there appears to be force in the reasoning adopted in the argument of the State that the petitioner had himself eloped from 8th or 9th of April from his residence or, he got the telegram sent on his behalf through his wife as a precautionary measure. He came to know of the arrest of the two co-accused Lal Chand and Bablu on 14-4-92 along with a part of the dacoity property who had named the petitioner also. Therefore, in his original telegram of 8th of April it had not been disclosed as to which police-station had arrested him and while moving the petition on 16-4-1992 it was incorporated in it that the petitioner was arrested by the police of Police-station Dhoomanganj which is factually incorrect.
26: It is true that at times too much of intelligence may lead oneself to difficulty. At this preliminary stage of the case it is impossible to believe that the property worth of Rs. 40,000/- would be falsely planted by the Investigating Agency on the two persons arrested on 16-4-1992 at 7-30 p.m. only in order to justify a false and wrong arrest of the petitioner. In this connection it was rightly emphasised by the State that no challenge whatsoever has been made so far as the arrest of the co-accused Lalit Vikram or for that matter the other two accused Lal Chand and Bablu arrested on 14-4-1992 are concerned.
27. All the aforesaid observations made in these petitions are only for the purpose of disposal of these petitions here in this Court and shall not be used for any purpose in any of the subsequent proceedings to commence hereafter. If the question of arrest, remand and detention, etc. are raised at the appropriate subsequent stages then it will be decided in accordance with law wholly unmindful of any finding or observations existing in this judgment.
28. At the request of the learned Counsel for the petitioner an attempt was made to summon the remand papers but since the strike is going on in the District Courts Allahabad it will not be possible to obtain it without much delay.
29. In this connection relevant remand orders have been filed along with counter affidavit one of which shows that the remand of the petitioner was obtained on 17-4-92 for keeping him in judicial custody which was allowed by the Magistrate for 14 days. The argument that there is no subsequent remand is not to be considered in this petition because that raises absolutely fresh question of fact and cannot and should not be mixed up with the initial remand after the arrest. This petition is confined, therefore, only to the question of arrest and the initial judicial remand granted by the Magistrate.
30. The recovery memo registering the aforesaid two cases under Section 395/412. IPC and Section 25 of the Arms Act at Police-Station Attarsuiya clearly indicates that the reasons for the arrest of the petitioner were disclosed. Therefore, it should be enough proof of the compliance of Article 22 of Constitution of India and Section 50 of the Cr. P.C.
31. In view of what has been stated above, the petition of Israr Ahmad lacks merits and should also fail.
32. Coming to the petition of Zakir it may be stated here that all the Rulings cited by Sri D.S. Misra are not being referred to for the simple reason that the arrest has not been denied by the petitioner.
33. In para 9 of the petition it has been said that the petitioner was arrested on 24-1-1992 without any warrant and without commission of any offence and he repeatedly asked the reasons of his arrest but it was not disclosed to him. None of the police personnel have ever told the petitioner Zakir the grounds of his arrest. He was taken to police station and mal-treated. Therefore, there was non-compliance of Article 22(1) of the Constitution of India and Section 50, Cr. P.C. It is admitted that C.J.M. Bareilly has granted police remand on 25-1-1992 when the petitioner was produced before him and it is further admitted that on expiry of the police remand, the petitioner was again produced before the C.J.M. who granted judicial custody for 15 days.
34. It was argued that on 30-1-1992 an application on behalf of the petitioner was moved before C.J.M. indicating therein that he has not been told the grounds of his arrest.
35. The State's case, however, is that a case was registered against the petitioner on 24-1-1992 under Section 307, IPC read with Section 7, CLA. and another case No. 89, under Section 25(a) of the Arms Act at P.S. Kotwali when he was arrested around 2 p.m. in the District Courts compound in district Bareilly. The cause of his arrest was that one of the under-trials who was to be escorted to the court said that the petitioner had come to the court to eliminate him and he would not go to the court without armed escort. At this, constables made enquiries from the petitioner and two others. They started running and threatened the police and ultimately fired on the police people. Police then succeeded in arresting him along with a foreign made revolver (English) 38 Bore, No. 71842. It is said that the recovery memo was prepared, a copy of which was handed over to the petitioner then and there. True copy of the general diary was filed by both the parties as Annexure to their affidavit. A clear averment exists in the said general diary entry that Nakal Fard Muljiman Ko Di Gai' (Translated into English which would mean that copy of the memorandum handed over to the accused). In view of the specific averment contained in the said memo which was prepared then and there, as per the allegation of the prosecution, every word of the incident is narrated therein including the fact that illicit arms were recovered from the petitioner and that he was being taken into custody for committing those offences, it can be safely said that no further communication of grounds of arrest was necessary and handing over of the memorandum to the petitioner at the time of his arrest indicated to him the full grounds of arrest.
36. In this connection it may be relevant to recall the famous observation of Lord Simonds who gave an illustration of the circumstances where the accused must know why he is being arrested :
There is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven.
37. The requirement that the person arrested should be told the reason why he is being caught naturally does not exist if the circumstances are such that he must know or obviously knows the general nature of the alleged offence for which he is being arrested. The aforesaid quotation of Lord Simonds has been quoted with approval in re : Madhu Limaye's case (1969 Cri LJ 1440) (SC) (supra).
38. In the instant case the arguments were obviously confined to the non-compliance of the provisions contained under Article 22(2) of the Constitution of India and Section 50 of the Cr. P.C. and, rightly so because the production of the petitioner Zakir before the Magistrate within 24 hours was and could not have been disputed on the facts and circumstance of the present case.
39. However, Sri D.S. Misra, had raised another argument saying that how and why is it that the entire period of 24 hours was necessary for the petitioner to be produced before the Magistrate in as much as he was already arrested around 2 p.m. on 24-1-1992. The argument proceeds that the court of Magistrate was available in the immediate neighbourhood and the petitioner could have been produced within hours of his arrest.
40. It was replied that after arrest necessary formalities had to be complied with by taking the petitioner to the police-station, getting the case registered, getting all the formalities completed relating to the property seized from the petitioner. Under the circumstances it was only the next day which could have been the earliest point of time when the petitioner was to be produced for obtaining remand and since admittedly the petitioner was produced on 25-1-1992 before the Magistrate concerned there was absolutely no illegality or laxity or delay in producing the petitioner before the Magistrate as required by law. The argument on behalf of the State is acceptable for the simple reason that it could not have been possible for the prosecution to produce the petitioner before the remand Magistrate without having first taken him unto the police-station for registering the case under various Sections against him at the said police station Kotwali, Bareilly.
41. Another argument in this connection was that there were substantial number of injuries found on 30-1-1992 when the petitioner was examined in the district Jail after he was granted judicial remand by the Magistrate and, how was it that on the day of his arrest and his production before the Magistrate on the next day no injuries were noted by the prosecution. In this connection the averment of the State consistently is that but for some minor insignificant injuries on the person of Zakir, no other serious or for that matter any grievous injury were existing on the entire body of Zakir. The prosecution does not accept that the narration contained in the injury report prepared on 30-1-1992 is correct reproduction of the physical condition of the petitioner at the time of his admission in jail.
42. Under the facts and circumstances noted above it will not be posible for this Court to entertain and go into the issue and find out as to whether and if what type of injury the petitioner had sustained or not sustained when he was arrested. Since the trial is to proceed before the Court soon, this question if raised before the appropriate court during the trial, may be decided in accordance with law. With the aforesaid discussion it must be held that so far as Zakir's arrest and production before the Magistrate and then granting police remand for five days and then judicial remand for the subsequent period suffers from no patent illegality as to require interference under Article 226 of the Constitution of India.
43. Consequently the petition of Zakir lacks merits and has to be dismissed.
44. In the result, Habeas Corpus Petition No. 13545 of 1992 succeeds and is allowed. Sher Bahadur singh detained regarding Case Crime No. 402 of 1992 under Sections 364/302, IPC, P.S. Colonelganj, Allahabad, be released forthwith unless wanted in any other case, with liberty to the courts below to issue process and proceed in accordance with law if a charge sheet is filed against him.
45. Habeas Corpus Petition No. 13688 of 1992 by Mahendra Bhushan and another, Habeas Corpus Petition No. 12541 of 1992 by Israr Ahmad and Habeas Corpus Petition No. 7643 of 1992 by Zakir alias Chachu fail and are dismissed. Parties to bear their own costs in all these four petitions.