Judgment 1. THIS Rule was issued on the prayer of one Jatindra Nath Das, father of Gunidranath, Das, upon the District Magistrate of Howrah, Offtcer-in-charge of Lillooah Police Station and the Station Staff Officer, Fort William, Calcutta to show cause why directions of the nature of Habeas Corpus should not issue under section 491 of the Code of Criminal Procedure and why Gunindranath, who has been illegally or improperly detained, should not be set at liberty. The petitioner's case is that his son Gunindranath is a teacher of Jagdishpur High School, Howrah, that on the 20th June, 1964 he was wrongfully and illegally arrested by the police on the alleged ground that he had deserted the Indian Array while serving the Secundrabad Unit, that he was produced before a Magistrate of Howrah on the 21st June, 1964 and that thereafter he was illegally made Over to the Army authorities in Calcutta. His case is that Gunindra never joined the Indian Army and that he was arrested on mistaken identity. It is also stated in the petition that some time in March, 1963 Gunindra discovered that his School Final Certificate was lost, that in spite of his best efforts he could not find out his certificate and that some time in May, 1963, he obtained a duplicate of the aforesaid School Final certificate. An affidavit has been sworn by the Officer-in-charge, Lillooah Police Station, in which the order of the Magistrate forwarding Gunindra to the Army has been reproduced. The order of the Magistrate (Shri M. N. Banerjee, Magistrate, 3rd Class, Howrah) is quoted below: "one Gunindra Nath Das, No. 6886423 R/clu is produced in custody from Lillooah O/c, on the strength of a deserter warrant from Officer Commanding Unit, Secundrabad. Forward him along with, this to the nearest Regimental Centre at Fort William, Calcutta, under Police escort. The deserter is challenging the fact that he had belonged to Military. On the contrary, he is producing certain documents to show that he is a student cum teacher-student of 3rd Year B. Com. of City College, Surya Sen Street, Calcutta and a teacher of Jagadishpur High School, P. S. Lillooah, Besides, it has been evident from preliminary examination; of the deserter's physique that Identification marks mentioned in the secret report did not comply with those upon the deserter. of City College, Surya Sen Street, Calcutta and a teacher of Jagadishpur High School, P. S. Lillooah, Besides, it has been evident from preliminary examination; of the deserter's physique that Identification marks mentioned in the secret report did not comply with those upon the deserter. So what emerges from the aforesaid analysis of the incident that there is room for grave doubt about the deserter's identification. However, let the deserter be sent to Fort William for proper verification along with the notes and documents produced here," 2. FROM the affidavit sworn by the Officer-in-charge of Lillooah Police Station it appears that a written information was sent to the Superintendent of Police, Howrah, by the Officer Commanding Unit No. 4 Basic Military Training Battalion, AOC Centre, Secundrabad, on the 6th May, 1964 to take early steps to apprehend the deserter whose details were given in that written information. It is affirmed in the affidavit sworn by the Officer-in-charge of Lillooah Police Station that on May 15, 1964 the Superintendent of Police, Howrah forwarded to him a warrant for arrest of Gunindra Nath Das, son of Jatindra Nath Das of village Jagadishpur, P. S. Lillooah, district Howrah, that on 16th May, 1964 he handed over the said warrant to Mahendra Roy, an Assistant Sub-Inspector of Police, Lillooah, that the said Sub-Inspector arrested on the 20th June, 1904 the said Gunindra Nath Das, and that on the and that on the 21st June, 1964, Gunindra was produced before Sri M N. Banerjee, Magistrate, 3rd Class of Howrah, It is also stated In that affidavit that in pursuance of the order of the Magistrate Gunindra was made over to the custody of respondent No. 3, the Station Staff Officer, Fort William, Mr. Banerjee appearing on behalf of the petitioner contends that neither the police officer nor the Magistrate was satisfied about the Identity of the real deserter that the order which was passed by the learned Magistrate without being satisfied that Gunindra was the person who was intended to be arrested is illegal and without jurisdiction and that accordingly the detention of Gunindra on the basis of that order is illegal the relevant provisions for consideration are section 105 of the Army Act and section 86 of the Code of Criminal Procedure. Section 105 (1) of the Army Act is quoted below. Section 105 (1) of the Army Act is quoted below. "whenever any person subject to this Act deserts, the commanding officer of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such, authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate, and shall deliver the deserter, when apprehended,' into military custody. " section 105 (2) of the Army Act is quoted below: "any Police Officer may arrest without warrant any person reasonably believed to 'be subject to this Act, and to be a deserter or to be traveling without authority, and shall bring him without delay before the nearest Magistrate, to be dealt with according to law," Regarding arrest by the Police Officer there is no affirmation either by the Officer-in-charge, Lillooah Police Station, who has sworn an affidavit, or by the Police Officer who arrested Gunindra that the latter reasonably believed. Gunindra to be subject to the Army Act Section 105 (2) provides that after arrest the person hag to be produced before the nearest Magistrate to be dealt with according to law; that has to be read with the provision in section 105 (1), that the civil authorities shall upon receipt of the written information take steps for the apprehension of the deserter in like manner as if he were a. person for whose apprehension a warrant has been issued by the Magistrate. Reading the provisions of sub-sections (1) and (2) of section 105 ft is plain that when a. person is arrested by a Police Officer he has to be brought before the Magistrate who is to deal with the matter in. accordance with law. Although there was no warrant issued by a Magistrate for the apprehension of Gunindra the civil authorities had taken steps as if Gunindra was a person for whose apprehension a warrant had been issued by a Magistrate. Therefore, the provisions of section 86, Criminal Procedure Code which is in Chapter VI (of Processes to Compel Appearance) B- Warrant of Arrest, are attracted. Therefore, the provisions of section 86, Criminal Procedure Code which is in Chapter VI (of Processes to Compel Appearance) B- Warrant of Arrest, are attracted. Section 86 (1) provides: "such Magistrate or District Superintendent or Commissioner shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court. " 3. THEREFORE, before a Magistrate can take action he must be satisfied that the person arrested appears to be the person intended to be arrested,-in the instant case by the military authorities. It is clear on a perusal of the Magistrate's order that he was not so satisfied. On the other hand, it appears that he had "grave doubts about the deserter's identification". That being so, the order of the learned Magistrate forwarding Gunindra to Fort William is without jurisdiction and illegal. In short, there is no material on the record to show that the police officer who arrested Gunindra was reasonably satisfied about his identity, that he reasonably believed Gunindra to be subject to the Army Act. The learned Magistrate also entertained grave "doubts about the deserter's identity. It has been contended by Mr. Talukdar appearing on behalf of respondent No. 3 that the provisions of section 86, Cr. P, Code do not apply. Even if it is assumed for the sake of argument that those provisions are not attracted even then in terms of section 105 (1) the civil authorities are required to take steps for the apprehension of the "said deserter". But it is clear from the order of the learned Magistrate that he was not satisfied that Gunindra was the "said deserter." 4. IN those circumstances the detention of Gunindra in pursuance of the aforesaid order of the Magistrate is illegal, mr. Talukdar has further contended that it is not possible for the Military authorities in Calcutta to say whether Gunindra is the real deserter or not, that it is the Military authorities of Secunderabad who can say whether Gunindra is the real deserter and also that it would take some time for Military personnel of Secunderabad to come to Calcutta for the purpose of verifying whether Gunindra is the real deserter who was intended to be arrested in pursuance of the written information sent by the Officer commanding Unit No. 4 to the Superintendent of Police, Howrah. But surely that can be no ground for permitting the wrongful detention to continue. We must, however, make it clear that this order will not in any way preclude the Military authorities from proceeding against Gunindra in accordance with law if he is found to he the real deserter. We do not express any opinion on the question whether Gunindra is the real deserter or not. Let Gunindra Nath Das who is present in Court be at once released from the custody of the Station Staff Officer, Fort William, Calcutta and let him be set at liberty forthwith. The Rule is made absolute as above.