Mohammad Umar v. Thakurprashad Tiwari — 1955 DIGILAW 49 (MP)

JUDGEMENT : NEVASKAR, J. This is a petition for the issue of a writ of habeas corpus in exercise of the powers of this Court under Art.226 of the Constitution. Petitioner is one Mohammad Umar s/o Suleman, a manufacturer and vendor of 'Bidis' residing and carrying on his business at Mahidpur in Madhya Bharat. The Bidis manufactured by him bear 'Anarkali Chhap Bidis' mark. 2. The opponent is a Sub-Inspector of Police at Sagar in Madhya Pradesh. On a complaint made by one Lallubhai Becharbhai of Sagar he registered an offence under S.420, I.P.C., against the petitioner. Both the opponent and Lallubhai went to Mohidpur and entered the house of the petitioner. A search of the house of the petitioner was effected with the assistance of the local Police. Several labels of 'Anarkali Chhap Bidis' as also bundles of Bidis manufactured by the petitioner were seized. A Panchanama of seizure too was made. The opponent then arrested the petitioner only to be released on furnishing a surety bond and a personal recognizance bond for Rs.1500. 3. On these facts the present petition is filed and the grounds set forth for the issue of a writ of habeas corpus are that the opponent Sub-Inspector of Police Sagar Mr. Thakurprasad Tiwari had no authority to register or investigate an offence which is said to have taken place outside the local jurisdiction of Sagar, and further that Magistrate's Court at Sagar has no jurisdiction to try an offence under S.420, I.P.C., as the petitioner had never been within the limits of jurisdiction of Sagar Court nor sold Bidis bearing his mark there. 4. The action of the opponent is stated to be mala fide and contrary to law and consequent detention is said to be illegal. 5. In his return, the opponent contended that a detailed complaint was filed by one Anantram Misra against the petitioner on the basis of which an offence under S.420, I.P.C., was registered at the Police Station Sagar and the matter is under investigation. 6. It is admitted by the opponent that in the course of the investigation of the aforesaid offence he came to Mohidpur, arrested the petitioner and seized the materials referred to by the petitioner but it is contended that this was done in complete conformity with the law and bona fide. 6. It is admitted by the opponent that in the course of the investigation of the aforesaid offence he came to Mohidpur, arrested the petitioner and seized the materials referred to by the petitioner but it is contended that this was done in complete conformity with the law and bona fide. It was asserted by the opponent that Sagar Court had perfect jurisdiction to try this offence. 7. The allegations of collusion of the opponent with one Lallubhai are denied by the opponent. 8. It is further alleged that during the stage of investigation of offence under S.120-B, I.P.C., was added to the initially registered offence under S.420, I.P.C. 9. The opponent referred to a letter received from the Government of India addressed to the Government of Madhya Pradesh which made it incumbent upon all Police officers to take a serious view of the offences such as one involved in the present case. 10. It is denied that the petitioner's fundamental right under Article 19 (1) of the Constitution of India is in any way violated. 11. It is claimed that the action of the opponent in arresting the accused and releasing him on his furnishing surety and a personal recognizance bond of Rs.1500 is perfectly lawful. 12. The jurisdiction of this Court to hear the present writ petition is also challenged. 13. According to the opponent Sub-Divisional Magistrate Sagar is seized of the case and is the proper authority to be approached for redress. 14. It is also contended that the opponent is not in actual custody and hence a petition for issue of a writ of habeas corpus is not maintainable. 15. Questions which arise for consideration on these respective submissions of the parties are : 1. Whether the opponent has no authority to investigate an offence registered in Sagar outside the limits of jurisdiction of Sub-Divisional Magistrate's Court, Sagar and to effect an arrest of the petitioner at Mohidpur. 2. Whether this Court can issue a writ of habeas corpus against the opponent. 3. Whether the fact that the petitioner is released on bail and on his personal recognizance bond will prevent this Court from exercising its power to issue a writ of habeas corpus. 4. Whether the action of the opponent is collusive and mala fide. 16. 2. Whether this Court can issue a writ of habeas corpus against the opponent. 3. Whether the fact that the petitioner is released on bail and on his personal recognizance bond will prevent this Court from exercising its power to issue a writ of habeas corpus. 4. Whether the action of the opponent is collusive and mala fide. 16. As regards the jurisdiction of this Court to issue writ against the opponent it is needless to say anything further than that he has submitted to the jurisdiction of this Court by contesting the petition and was present at the hearing. Under these circumstances, no serious challenge can be put forward as regards the power of this Court to issue an appropriate writ against the opponent if need be. During the stage of argument this point was not seriously contested. 17. Regarding the objection No.3 referred to above raised on behalf of the opponent, it is enough to mention the decision of this Court reported in - Mohammad Zahural Huque v. State', AIR 1950 Madh-B 17 (A), wherein Mehta and Sanghi JJ. relying upon the decision in - 'Sandal Singh v. District Magistrate and Superintendent Dehra Dun', AIR 1934 All 148 (B), held that even if a person is released on bail he must be considered to be detained in the constructive custody of the Court through the surety, as his liberty is subject to restraint and he has to be produced before the Court by the surety. We respectfully agree and are bound to follow this decision. 18. As regards the mala fide nature of the action of the opponent barely on the facts stated in the petition it is difficult to assume mala fides of the opponent particularly where, as will be seen later, he has purported to act within the ambit of his authority and has denied the allegations regarding his collusion with Lallubhai and of his having acted with an ulterior motive under the garb of his office. 19. In order to suggest the mala fides of the opponent facts stated in the petition are that he travelled in the car of Lallubhai from Sagar to Mahidpur and that he effected a search in Laxmivilas Printing Press. 19. In order to suggest the mala fides of the opponent facts stated in the petition are that he travelled in the car of Lallubhai from Sagar to Mahidpur and that he effected a search in Laxmivilas Printing Press. The latter fact is denied by the opponent and although the former may be assumed to be true it is difficult to draw an inference of mala fides more particularly as the matter is at the stage of investigation and it may be that on investigation no further proceedings might be taken and the petitioner set free. 20. The only ground then remains is No.1. It is admitted by the petitioner that an offence under S.420 I.P.C. is registered at the Police Station Sagar. It is further admitted that the opponent is a Sub-Inspector of Police stationed at Sagar and therefore in case the offence is triable by the Sub-Divisional Magistrate's Court Sagar then by S.156, Criminal P.C. he has power to investigate the offence. It is contended by the petitioner that he never sold his Bidis in Sagar to any merchant or customer nor deceived any person there by using a false trade-mark. The opponent replies that he is not in a position to say anything about this allegation unless his investigation is complete. 21. It is no doubt true that the opponent has not set forth in the affidavit what the complaint was against the petitioner which would give jurisdiction to the Magistrate to try the case against him and consequently to opponent to investigate. It is held in - 'Swami Hariharnand Saraswati v. Jailor in charge District Jail Banaras', AIR 1954 All 601 (C), as follows: "It is well established that a return to a writ of habeas corpus has to be unambiguous and it has got to set forth clearly and directly and with sufficient particularity the facts and the causes for the petitioner's detention. The return has to state all the facts and all the grounds which constitute valid and sufficient grounds for the detention of the person alleged to be detained. There is no scope, in our view, of any presumption being pressed into service by a Court to make up deficiencies in the return which the opposite party was in law bound to make." 22. There is no scope, in our view, of any presumption being pressed into service by a Court to make up deficiencies in the return which the opposite party was in law bound to make." 22. From what appears in the petition and the return it seems that the petitioner has imitated a trade label of Bidis of a manufacturer at Sagar. It is not plain whether he sold the Bidis with the imitated label on the bundles containing the Bidis within the precincts of Sagar and thereby caused deception of the purchasers there or did this anywhere else. One of the series of the acts in the process of cheating viz. preparation of bundles with imitated labels might be assumed to have taken place outside Sagar. Whether the act of deception alleged took place within the jurisdiction of Sagar Court ought to have been made clear. If the investigation is not complete at least the opponent must have stated on affidavit what the complaint was which justified him in undertaking investigation of the offence outside the limits of Sagar Court. 23. The controlling Section indicating the limits of jurisdiction in cases of cheating is S.179, Criminal P.C. According to this Section: "When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offences may be inquired into or tried by a Court within the local limits of whose jurisdiction any such tiling has been done, or any such consequence has ensued." 24. Now the consequence referred to in this Section is the consequence which is an ingredient of the offence vide: In re 'Jivandas Savchand', AIR 1930 Bom 490 (FB) (D); - 'Abdul Karim v. Emperor', AIR 1929 Pat 640 (E), and - 'Kashi Ram Mehta v. Emperor', AIR 1934 All 499 at p.503 (F). 25. In cases of the sort as the present, the ingredients of the offence are (I) practising of deception upon the purchaser by inducing belief of what a particular article is when in fact it is not (II) and thereby inducing them to purchase. It may be that in some cases of cheating deception may be caused by the accused at one place and the complainant might be induced to deliver any property at another place. It may be that in some cases of cheating deception may be caused by the accused at one place and the complainant might be induced to deliver any property at another place. Then since each of these factors forms an ingredient of the offence the Court at either place would have jurisdiction. But where deception is caused to members of the public and they are induced to make payment of price in respect of a spurious article at one place which ultimately causes loss to the manufacturer of genuine article at another place it is difficult to call the consequence of such a loss as an ingredient of the offence. It has nothing to do with the matter of deception of the customer. 26. In, the present case in the absence of materials to know what the complaint was it is difficult to say whether the Magistrate at Sagar would have jurisdiction to try the case against the petitioner and consequently the opponent would have a right to investigate the offence even assuming that he was doing so under the orders of his superior officers at Sagar. 27. For the failure to set forth appropriate facts which are or might be assumed to be within the knowledge of the opponent he alone is responsible and the petitioner cannot be blamed. 28. This Court therefore is not in a position to say that the power of investigation and consequent arrest of the petitioner by the opponent was legal. 29. But there is one difficulty in the way of the petitioner. The petitioner is arrested and released on furnishing surety and personal recognizance bond to appear before a Magistrate. In such cases as held in AIR 1950 Madh-B 17 (A), the constructive custody is that of a Court before whom he is to be produced by the surety whenever required. Under S.167, Criminal P.C. a Police Officer conducting an investigation is bound to produce the accused before a Magistrate within 24 hours and further detention and custody is that of the nearest Magistrate or of the Magistrate having jurisdiction to try the case as the case may be. Consequently no effective order can be passed regarding the illegal character of the detention of the petitioner in the absence of either of these Magistrates in whose custody the petitioner can legally be held to be. 30. Consequently no effective order can be passed regarding the illegal character of the detention of the petitioner in the absence of either of these Magistrates in whose custody the petitioner can legally be held to be. 30. The present petition, therefore, directed against the opponent alone is misconceived and cannot help the petitioner. 31. Besides this the petitioner can approach the Magistrate under whose custody he can be held to be and obtain redress. The existence of a suitable and adequate remedy before a Court of law who will be in a position to know all the facts and allegations is a consideration which makes me disinclined to exercise my powers under Art.226 of the Constitution of India which are discretionary. 32. The application is therefore dismissed. 33. Under the circumstances of the case the parties will bear their costs. 34. SAMVATSAR, J.: I agree. Application dismissed.