( 51 ) QUESTION now to be considered is whether these words as final have reference to the final decision by the appellate authority as contended on behalf of the Corporation or whether these words have been used in contradistinction to the word provisional? It was not disputed on behalf of the Corporation that before the amendment of regulation 76-B in December 1977 the words as final were used in contradistinction to the word provisional No other view is possible for the obvious reason that proviso to old regulation 73 clearly refers to assessment of permanent disablement as final by the Medical Board. Under clause (iii) of old regulation 73 the Medical Board was required to state in its report whether the assessment of the proportion of the loss of earning capacity was provisional or final. And it was in that context that proviso laid down that assessment of disablement due to employment injury was to be treated as final unless the Medical Board specifically stated to the contrary and recorded the reasons therefor. There is therefore no doubt that before its amendment in December 1977 when sub-regulation (1) spoke of final assessment it meant assessment which was not provisional. In other words word final was used in contradistinction to the word provisional. Now did the amendment of regulation 76-B in December 1977 brought about such change in the provision as to make the benefit of commutation available only when decision was rendered by the final appellate authority? According to the Corporation the object of retaining the words as final was to make benefit available only when decision was rendered by the final appellate authority. I am unable to see any force in this argument. I have already referred to the earlier provisions of regulation 76-B and as pointed out above it is not disputed on behalf of the Corporation that before its amendment the word final was used in contradistinction to the word provisional. In other words if the assessment of permanent disability by the Medical Board was final and not provisional the insured person was entitled to claim the benefit of commutation. In my opinion amendment of regulation 76-B (1) in December 1977 has not it any way altered this position. In other words if the assessment of permanent disability by the Medical Board was final and not provisional the insured person was entitled to claim the benefit of commutation. In my opinion amendment of regulation 76-B (1) in December 1977 has not it any way altered this position. Deletion of the words which followed the words as final in regulation 76-B (1) before its amendment became necessary in view of the substitution of the old regulation 73 by new regulation 73. This deletion of words was not meant to make any change as suggested on behalf of the Corporation. Since there was no proviso to new regulation 73 no reference to such proviso could have been retained in regulation 76-B (1) and it was for that reason that reference to such proviso was deleted. It must be borne in mind that even after the substitution of regulation 73 it is open to the Medical Board to make provisional assessment of the permanent disability under sec. 51 read with sec. 54. It is because it is within the power of the Medical Board to make either provisional or final assessment that regulation 76-B (1) provides that only in case where the assessment of permanent disablement is final that benefit of commutation can be claimed. When assessment of permanent disablement is only provisional for obvious reason the benefit of commutation cannot be claimed. It is with the above object in view that the words as final have been used in regulation 76-B (1) and not for the purpose which is urged on behalf of the Corporation. Regulation making authority has advisedly used the words has been asssessed as final and not has been finally assessed or assessment has become final. The language used in regulation 76-B makes it abundantly clear that the word final has been used in contradistinction to the word provisional bearing in mind the provisions of secs. 51 and 54 of the Act. ( 52 ) EVEN the Corporation it seems placed the above construction on regulation 76-B (1 ). This becomes evident from forms B. I. 3 and ESIC-154 which are not prescribed by the Act the rules or regulations but by the Corporation itself. 51 and 54 of the Act. ( 52 ) EVEN the Corporation it seems placed the above construction on regulation 76-B (1 ). This becomes evident from forms B. I. 3 and ESIC-154 which are not prescribed by the Act the rules or regulations but by the Corporation itself. As already pointed out above in form B. I. 3 which is prescribed for communicating the decision of the Medical Board it is clearly stated that the insured person if dissatisfied with the decision of the Medical Board may prefer an appeal to the Tribunal or to the E. I. Court and in the mean time claim benefit at the rate stated in the decision without prejudice to his right to claim benefit at a higher rate that may be awarded to him on appeal. In the letter in form ESIC-154 along with which the decision of the Medical Board in form B. I. 3 is sent to the insured person it is stated that if the insured person wants to claim benefit of commutation he should do so within 15 days from the receipt of the decision of the Medical Board. The combined reading of forms B. I. 3 and ESIC-154 makes it clear that even according to the Corporation the insured person who wants to prefer appeal against the decision of the Medical Board can apply for benefit of commutation; the letter does not state that in case the insured person wants to prefer appeal he should not apply for commutation until the decision is rendered by the final fact finding appellate authority. On the contrary as pointed out above it intimates the insured person to make an application within 15 days from the receipt of the letter. This intimation is given while informing the insured person that he is free to appeal against the decision of the Medical Board if he is dissatisfied with it. On the contrary as pointed out above it intimates the insured person to make an application within 15 days from the receipt of the letter. This intimation is given while informing the insured person that he is free to appeal against the decision of the Medical Board if he is dissatisfied with it. Incidentally it may be mentioned that asking the insured person to apply for commutation within 15 days of the receipt of the decision of the Medical Board is not in consonance with the provision of sub-regulation (2) of regulation 76-B which in terms provides that claim can be made within six months from the date on which the insured person can opt for commutation; but at this stage what I am emphasising is that even according to the Corporation in case whether the permanent disablement has been assessed as final by the Medical Board the right to claim commutation accrues in favour of the insured person under regulation 76-B (1 ). Apart from the view which the Corporation appears to hold in the light of forms B. I. 3 and ESIC-154 as discussed above language of regulation 76 itself is clear leaving no room for doubt that when assessment of permanent disability of an insured person is assessed as final by the Medical Board the right to make application for commutation accrues or arises. In my view therefore the submission that in case the appeal is preferred against the decision of the Medical Board right of commutation under regulation 76-B (1) does not arise till the decision of the appellate authority cannot be accepted. Insured person has a right to make application for commutation under the said regulation on permanent disablement being assessed as final by the Medical Board and he does not have to wait till the decision is rendered by the appellate authority. Of course before the application for commutation can be granted other requirements of regulation 76-B have to be satisfied. If the right to make application for periodical payments under regulation 76-A arises on the Medical Board giving decision on the question of permanent disablement having regard to the language used in regulation 76-A and regulation 76-B I am unable to understand how it can be argued that the right to claim commutation under regulation 76 does not arise the final decision is given by the appellate authority. It is true that so far as regulation 76-A is concerned as pointed out on behalf of the Corporation the words assessed as final have not been used but this is because both in the case of provisional and final assessments insured person is entitled to make application. In my Opinion the right to make application under regulation 76-A or regulation 76-B as the case may be arises no sooner the decision is rendered by the Medical Board. Therefore the only conclusion which could be reached is whether or not the insured person desires to prefer appeal under the provisions of sec. 54-A (2) the Corporation is under an obligation to commute periodical payments of permanent disablement benefit provided the conditions and requirements of regulation 76-B stated above are satisfied. The insured person cannot be denied the right to claim commutation in case he desires to prefer appeal until the decision is rendered by appellate authority. ( 53 ) IT is in the background of the facts stated above and relevant provisions of the Act and the Regulations that the question whether the respondents appeal before the Tribunal was not maintainable as urged on behalf of the Corporation is to be examined. I will examine this question on the assumption that the respondent in his application in form No. G. R. O. 197 prescribed by the Corporation had stated to the effect that he had not preferred appeal that he did not propose to prefer any appeal and that he had waived his right of appeal. As I will discuss at a later stage it is doubtfull whether the respondent had put his signature below the application in the aforesaid form fully understanding the implication of the statements made in the application. As discussed above the Corporation was under an obligation to consider the respondents application for commutation under regulation 76-B on merits irrespective of fact whether or not he had appealed or he proposed to appeal against the decision of the Medical Board. Therefore when he made application for commutation of the periodical payments of p. d. b. he was not claiming something which he was not legally entitled to under the regulations nor was the Corporation agreeing to confer on or give any advantage or benefit to the respondent which he was not legally entitled to when it entertained his application for commutation. In other words as a result of entertainment and grant of the respondents application for commutation before the decision of the appellate authority no injury is caused to the Corporation. In other words on account of the application made by the respondents the Corporation has not altered its position to its detriment. By the application what the respondent required the Corporation to do was to commute periodical payment of p. d. b. which the corporation was bound to do if the conditions and requirements of regulation 76-B were satisfied. It was not the case as if the respondent had alternative or mutually exercisable rights to choose from namely to claim commutation under regulation 76-B or to prefer appeal. As observed by the Supreme Court in BHAU RAM V. BAIJ NATH SINGH A. I. R. 1961 S. C. 1327 a person who takes benefit under all order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. The existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. The advantage which the respondent got as a result of the application made by him under regulation 76-B is not some thing which is de hors his claim on merits. In other words he got some thing which he was entitled to on merits. If the respondent had by agreeing not to prefer appeal got some thing which he was not entitled to or he had put the Corporation to in less advantageous position it could have been urged that the respondent was estopped from preferring appeal but here he does not get anything more than what he was entitled to under the law. It is therefore difficult to see how principle of estoppel would be attracted. ( 54 ) AS pointed out by the Supreme Court in GYARSI BAI V. DHANSUKH LAL A. I. R. 1965 S. C. 1055 to invoke the doctrine of estoppel embodied in sec. 115 Evidence Act 1872 three conditions must be satisfied: (1) representation by a person to another (2) the other shall have acted upon the said representation and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made. 115 Evidence Act 1872 three conditions must be satisfied: (1) representation by a person to another (2) the other shall have acted upon the said representation and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made. In the instant case assuming for the sake of argument that first two conditions are satisfied; there is no doubt that third condition as already pointed out above has not been satisfied. The action of the respondent has been in no way detrimental to the interest of the Corporation to whom the representation about the respondent having not filed appeal or having no desire to file appeal has been made. Whether or not the respondent had filed appeal or desired to file appeal the Corporation was under legal obligation to entertain the respondents claim for commutation on merits. Therefore there is no bar of estoppel under sec. 115 of the Evidence Act. ( 55 ) IT was then urged on behalf of the Corporation that even if the respondents case does not strictly come within the purview of sec. 115 of the Evidence Act the respondent could not have appealed under the doctrine of promissory estoppel. As observed by the Supreme Court in M. P. SUGAR MILLS V. STATE OR U. P. A. I. R. 1979 S. C. 621 promissory estoppel principle is evolved to avoid injustice. What is necessary is that the promisee should have altered his position in reliance on the promise. In the instant case as pointed out above no injustice or injury has resulted to the Corporation on account of the application made by the respondent for commutation or benefit derived by him under that application. The Corporation has also not altered its position in any way. On account of any promise held out by the respondent. In my opinion therefore there is no bar of promissory estoppel either as urged on behalf of the Corporation. ( 56 ) THE next question is whether there is any waiver on the part of the respondent. It is the Corporations case that the respondent had agreed to waive his right of appeal and it was on account of this agreement that the Corporation gave him benefit of commutation under Regulation 76-B. If there is an agreement as urged on behalf of the Corporation such agreement has to be lawful. It is the Corporations case that the respondent had agreed to waive his right of appeal and it was on account of this agreement that the Corporation gave him benefit of commutation under Regulation 76-B. If there is an agreement as urged on behalf of the Corporation such agreement has to be lawful. The agreement would not be lawful unless there was consideration for it. What is the consideration for the respondent agreeing not to prefer appeal? The answer is that there was no consideration whatsoever for waiving this right of appeal. As already pointed out above the respondent did not get any advantage or benefit to which he was not entitled as a result of the agreement. There was no purpose or object in waiving the right of appeal. In other words there was no consideration for waiving the right of appeal. In my opinion therefore the question of waiver also does not arise. In other words the respondents appeal before the Tribunal could not be thrown out on the ground that he had waived his right of appeal. ( 57 ) IT is also doubtful whether the respondent put his signature or thumb impression below the application GRO-197 after fully understanding and knowing the implication of the statement made therein. It cannot be gainsaid that most of the insured persons are illiterate. Many of such persons who are not illiterate may not be knowing Gujarati the language in which application GRO-197 is drawn up. It must be remembered that GRO-197 is not a form prescribed by the Act Rules or Regulations. It is devised by the Corporation and insured person seeking commutation on the basis of the report of the Medical Board is required to make application in this form. It appears that it is the long standing practice of the Corporation to receive application for commutation in form GRO-197. This is obvious from the contents of the form. Even before the regulation 76-B was amended in December 1977 as pointed out above the Corporation was receiving applications for commutation in this form. As pointed out above it was conceded on behalf of the Corporation that under regulation 76-B before its amendment in December 1977 the Corporation was under an obligation to commute periodical payments of p. d. b. No sooner the decision was rendered by the Medical Board. As pointed out above it was conceded on behalf of the Corporation that under regulation 76-B before its amendment in December 1977 the Corporation was under an obligation to commute periodical payments of p. d. b. No sooner the decision was rendered by the Medical Board. In other words even according to the Corporation before the amendment of regulation 76-B insured person who desired to prefer appeal against the decision of the Medical Board was not required to wait till the decision was rendered by the final appellate authority for making application for commutation. Still however the Corporation required the insured person to make application in form G. R. O-197. Therefore there is no substance in the Corporations contention that it is in view of the amendment of regulation 76-B on account of which right to make application for commutation accrues or arises on the appellate authority finally deciding the question of p. d. b. that the insured persons are required to state that they have not preferred any appeal nor do they desire to file appeal against the decision of the Medical Board while making application in form No. G. R. O. 197. Even after the amendment of regulations 74 and 76-B the Corporation has not cared to bring form G. R. O. 197 in consonance with the amended provision. The form still refers to regulation 74 as the provision under which the insured person is entitled to prefer appeal. Regulation 74 as it stands today does not make any provision for appeal. This clearly indicates non-application of mind on the part of the officers of the Corporation while receiving applications from the insured persons in form G. R. O. 197 In the said form there is a statement to the effect that applicant forgoes or waives his right of appeal under regulation 74. Regulation 74 as pointed out above does not deal with appeal and therefore this statement in context of the amended regulation is meaningless. It would therefore appear that the respondent while making application in form G. R. O. 197 did not know or understand what was stated in the form. He appears to have simply signed where he was asked to sign. The contents of the application form do not appear to have been explained to the respondent. Under these circumstances mere production of application in form GRO. He appears to have simply signed where he was asked to sign. The contents of the application form do not appear to have been explained to the respondent. Under these circumstances mere production of application in form GRO. 197 purported to have been signed by the respondent would not go to show that the respondent had intentionally or knowingly waived the right of appeal. ( 58 ) AS discussed above all the conditions and requirements of regulation 76-B were satisfied when the respondent made application for commutation of periodical payments of p. d. b. His permanent disablement was assessed as final and he was awarded p. d. b. at a rate not exceeding Rs. 1. 50 per day by the Medical Board. In the view which I am taking it is immaterial whether or not he claimed benefit at the rate exceeding Rs. 1. 50 or he was in fact awarded benefit at the rate exceeding Rs. 1. 50 per day by the appellate authority. If as a result of the decision of the appellate authority the respondent is paid something which he is not legally entitled to the Corporation is not without remedy. It may in such an event resort to the provisions of sec. 70. I may however make it clear that I am not expressing any final opinion on the question whether or not the Corporation would be entitled to claim repayment or refund of the commuted amount under sec. 70 as it is not necessary for me to do so in the present appeals. I am merely indicating that in case any payment which the insured person is lawfully not entitled to is made to him it may be open to the Corporation to take recourse to the provisions of sec. 70. However as pointed out above in the present group of appeals there are only two cases where the rate exceeding Rs. 1. 50 per day has been awarded by the Tribunal. Therefore except in those two cases there is no question of any unlawful payment to the insured persons. I am told that by recent amendment of regulation 76 amount of Rs. 1. 50 per day is raised to Rs. 2. 00 per day with effect from 1/07/1983 In two cases to which reference is made above the rate does not exceed Rs. 2. 00 per day. I am told that by recent amendment of regulation 76 amount of Rs. 1. 50 per day is raised to Rs. 2. 00 per day with effect from 1/07/1983 In two cases to which reference is made above the rate does not exceed Rs. 2. 00 per day. It is not in dispute that from 1/07/1983 even those insured persons who have been awarded benefit at the rate exceeding Rs. 1. 50 per day but less than Rs 2/- per day are entitled to claim the benefit of commutation. That being the position even in the aforesaid two cases the question of repayment would be purely academic. ( 59 ) IN the result these appeals fail and are dismissed with costs. ( 60 ) I am told by the learned Counsel for the respondents that the Corporation has withheld payment of commuted amounts payable to the respondents in accordance with the decisions of the Tribunal. In view of the fact that the Corporations applications for stay of the operations of the orders of the Tribunal and E. I. Court were rejected there was no justification to withhold such payments. I therefore direct the Corporation to make payment of the commuted amounts to the respondents at an early date which shall not be later than two months from to day. 18 Writ to be sent down immediately. Appeal dismissed. . V. V. BEDARKAR, J. ( 1 ) THIS petition is filed by the petitioners under Articles 226 and 227 of the Constitution of India for the enforcement of their fundamental rights under Article 21 of the Constitution of India. ( 2 ) THE petitioners are involved in offences punishable under secs. 364 (this section is mentioned in the simple copy of the First Information Report produced at Annexure A but I am shown the original First Information Report wherein offence is shown to be under sec. 363 of the Indian Penal Code) 326 506 and 114 of the Indian Penal Code. ( 3 ) THE allegations of the prosecution are that one boy named Mohamed Hanif aged about 15 years was serving at a canteen in Aradhana Talkies in Baroda. He originally belonged to Chhota Udepur and it is the allegation in the complaint that one year before he was staying in the station area. But it is not clear whether that station area was of Baroda or Chhota Udepur. He originally belonged to Chhota Udepur and it is the allegation in the complaint that one year before he was staying in the station area. But it is not clear whether that station area was of Baroda or Chhota Udepur. At any rate he had come to Baroda due to the circumstances for serving. He served at the said canteen for one and a half years. One day one enuch Anopkunver went to him and told him that he would be given a very good service and so saying said enuch took the complainant to Akota where he was kept for three days. During this time the complainant was permitted to put on pant and bush-shirt. During this period one another enuch Kantakunver went to the complainant at Akota and told him that they will get a good service for him in the hotel. So saying the complainant was taken to the Akhada of Enuchs at Beranpura in Baroda. Thereafter he was taken in round about villages. At Beranpur the complainant was forcibly given a dress of a lady. He was not permitted to run away because there was strict vigilance. Then he was taken to Kalol by Kantakunver. At that time it is the allegation that the enuchs threatened him that if he would inform anybody he would be killed. Therefore due to this threat he did as they said. Then it is his case that at Kalol he was staying at one enuch Lilade Sitade. On the fourth night one woman named Hiraben was called. Said Lilade Sitade is accused No. 3 and Hiraben is accused No. 4. At about 3-00 a. m. one person named Shankerbhai (accused No. 5) emasculated his male organ. Therefore the complainant became unconscious and remained so for six days. Thereafter he remained at Kalol for one month and then he was brought to Beranpura at Baroda. Then he has narrated as to what was charged by Hiraben and also how much he collected from begging. Then he gave a complaint at Kareli Baug Police Station which was registered on 27-7-1982 at 19-30 hours It is also his case that his name was changed to Jyotikunver Anopkunver showing that he was find of accd. No. 1 Anopkunver. ( 4 ) ON the said complaint the Police at Baroda started investigation and all the accused were arrested. Then he gave a complaint at Kareli Baug Police Station which was registered on 27-7-1982 at 19-30 hours It is also his case that his name was changed to Jyotikunver Anopkunver showing that he was find of accd. No. 1 Anopkunver. ( 4 ) ON the said complaint the Police at Baroda started investigation and all the accused were arrested. Accused No. 3 Lilade accused No. 4 Hiraben and accused No. 5 Shankerbhai through their Advocate Mr. N. K. Barot (who represents the present petitioners in this petition also) filed Special Criminal Application No. 1171 of 1982 on various allegations that all the accused cannot be tried together and the Baroda Court has no jurisdiction to try the case and the Baroda police has no jurisdiction to conduct the investigation. The said petition was dismissed by this Court (S. B. Majmudar J. ). ( 5 ) NOW the present two petitioners have come with the following grievances: (1) The fundamental rights of the petitioners under Articles 21 and 22 (1) of the Constitution of India are breached or invaded. (2) The police during the investigation or at the time of the arrest of the petitioners have not followed the mandatory provisions of section 50 (1) of the Code of Criminal Procedure 1973 (3) That the Baroda Court has no jurisdiction to try petitioner No. 2 and original accused Nos. 3 to 5. (4) That the joint trial of petitioner No. 1 with other accused is not permissible. (5) The averments made in the complaint do not make out any ingredient of the offence with which petitioner No. 1 is charged. (6) Petitioner No. 2 cannot be joined as an a better to petitioner No. 1 as once the complainant is taken out of the lawful guardianship the offence of kidnapping is over and it is not a continuing offence. ( 6 ) IN support of these averments Mr. Barot has taken me through the complaint averments made in the petition and also the provisions of law and various rulings. Though he has cited various rulings to show that even if the matter is for investigation with the police but as the first information report is filed before the police does not make out any offence then this Court can quash the proceedings. Attempt was made by Mr. Though he has cited various rulings to show that even if the matter is for investigation with the police but as the first information report is filed before the police does not make out any offence then this Court can quash the proceedings. Attempt was made by Mr. J. M. Panchal learned Public Prosecutor for the State by referring to other rulings tried to show that the province of investigation by the police and the province of trial by the Court are entirely different and therefore the Court should not interfere into the investigation. To support his arguments he has relied on the decisions of the Supreme Court in STATE OF BIHAR V. J. A. C. SALDANNA AIR 1980 SUPREME COURT 326. KURUKSHETRA UNIVERSITY V. STATE OF HARYANA AIR 1977 SUPREME COURT 2229 AND JEHANSINGH V. DELHI ADMINISTRATION AIR 1974 SUPREME COURT 1146. In these decisions after relying on the decision of the Privy Council in KING EMPEROR V. KHWAJA NAZIR AHMAD (1944) 71 INDIAN APPEALS 203 it was held that investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government and the power of the police to investigate into a congnizable offence is ordinarily not to be interfered with by the judiciary. ( 7 ) ALL these decisions were considered by the Supreme Court in STATE OF WEST BENGAL V. SANCHAITA INVESTMENTS AND SWAPANKUMAR GUHa AIR 1982 SUPREME COURT 949 and it was specifically observed that a First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied cannot form the foundation or constitute the starting point of a lawful investigation. It was further observed that an investigation can be quashed if no cognizable offence is disclosed by the F. I. R. It is surely not within the province of the police to investigate into a Report (F. I. R.) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. Therefore it was held that if the ingredients of the offence are not brought out even in the F. I. R. then the Court has jurisdiction to quash the proceedings. Therefore the matter rests here. ( 8 ) I shall consider at the appropriate stage the arguments of Mr. Therefore it was held that if the ingredients of the offence are not brought out even in the F. I. R. then the Court has jurisdiction to quash the proceedings. Therefore the matter rests here. ( 8 ) I shall consider at the appropriate stage the arguments of Mr. Barot and the counter arguments of Mr. J. M. Panchal pertaining to this aspect as to where the allegations made in the complaint bring out the ingredients of a criminal offence. ( 9 ) FIRST of all I will consider the reliance of Mr. Barot on Articles 21 22 and also 22 (5) of the Constitution of India. Under Article 21 of the Constitution no person is to be deprived of his life or personal liberty except according to procedure established by law. In order to support this right Mr. Barot has relied on the provisions of sec. 50 (1) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) to which reference will be made presently. But reliance is on Article 22 (1) of the Constitution which provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. I have supplied emphasis to the word informed because it is argued by Mr. Barot that this information must be communicated in writing. In order to show how this interpretation is plausible he relied on Article 22 of the Constitution which provides:"22 (5) When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. "reliance is placed on Article 22 (5) of the Constitution of India bakes the wording of sec. 50 (1) of the Code requires communication. Sec 50 of the Code is as follows:"50 Person arrested to be informed of grounds of arrest and of right to bail. "reliance is placed on Article 22 (5) of the Constitution of India bakes the wording of sec. 50 (1) of the Code requires communication. Sec 50 of the Code is as follows:"50 Person arrested to be informed of grounds of arrest and of right to bail. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest (emphasis supplied)SUB-SEC. (2) of sec. 50 of the Code refers to the provision of bail with which we are not very much concerned in this petition. ( 10 ) NOW it is the contention of Mr. Barot that though the heading of sec. 50 of the Code refers to Person arrested to be informed of grounds of arrest in the body of the section it has been stated that such a person shall forthwith be communicated the full particulars of the offence for which he is arrested. Therefore according to him this word communicate should be interpreted in the light of Article 22 (5) of the Constitution of India and on the strength of the decisions under that Article. ( 11 ) I shall be referring to some of the rulings because most of the rulings cited by Mr. Barot have referred to this aspect. But it cannot be overlooked that provision of Article 22 (5) of the Constitution is pertaining to detention in pursuance of an order made under any law providing for preventive detention. It cannot be gainsaid that preventive detention takes out liberty of an individual without any trial. An Executive is authorised by the Preventive Detention Act to detain a person by following the procedure provided under Articles 22 22 etc. of the Constitution without any trial. ( 12 ) THE question to be considered is whether those aspects can be imported into the provisions of sec. 50 (1) of the Code where on a mere allegation in the F. I. R. a person is arrested and then according to sub-sec. (2) of section 50 of the Code where a Police Officer arrests without warrant any person other than a person accused of a nonbailable offence he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. While the provisions of sec. (2) of section 50 of the Code where a Police Officer arrests without warrant any person other than a person accused of a nonbailable offence he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. While the provisions of sec. 56 of the Code provide that a police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions contained in the Code as to bail take or send the person arrested before a magistrate having jurisdiction in the case or before the officer in charge of a police station. Section 57 of the Code provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not in the absence of a special order of a Magistrate under sec. 167 of the Code exceed twentyfour hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court. ( 13 ) THEREFORE in normal cases immediately after the arrest the accused person is to be produced before the Magistrate if he is arrested without warrant and in no case it should be delayed beyond 24 hours. Therefore there is a provision in the Code for intervention of the Court when a person is arrested without warrant. It means that after a person is so arrested under sec. 56 of the Code he has a privilege of taking recourse to the provisions contained in the Code as to bail and the Magistrate also has to consider whether custody with the police of the said person should be continued or he should be sent to judicial custody or released on bail. So here is net a detention without inquiry where statutory provisions of Article 22 (5) of the Constitution of India for detention of a person in pursuance of an order made under any law providing for preventive detention would be applicable. ( 14 ) ALL the rulings cited by Mr. Barot under Article 22 (5) of the Constitution pertaining to the information in writing are with reference to the law providing for preventive detention. Still however I shall refer to some of the important rulings which I think I should discuss. ( 15 ) IN Re. ( 14 ) ALL the rulings cited by Mr. Barot under Article 22 (5) of the Constitution pertaining to the information in writing are with reference to the law providing for preventive detention. Still however I shall refer to some of the important rulings which I think I should discuss. ( 15 ) IN Re. Madhu Limaye A. I. R. 1969 Supreme Court 1014 he was of course arrested and for the grounds of arrest it was stated that the arrested persons were merely told that. they had been arrested under the section which were bailable. On this consideration the Supreme Court observed that it remains to be seen whether any proper cause has been shown in the return for declining the prayer of Madhu Limaye and other arrested persons for releasing them on bail on the ground that there was noncompliance with the provisions of Article 22 of the Constitution. Now in that case they continued in custody beyond the period of 24 hours. The Supreme Court considered that if their detention in custody could not continue after their arrest because of the violation of Article 22 (1) of the Constitution they were entitled to be released forthwith. Apparently the facts clearly show that when they were arrested they were not told for what they were being arrested. In the instant case the case against the petitioners is very clear and as I have discussed earlier the facts show that they were arrested for a particular offence. The question to be considered will be whether they were informed of it or the grounds of arrest were communicated to them and that will be the subject-matter of discussion at a later stage. ( 16 ) REFERENCE is made to various rulings of the Supreme Court to show what is the meaning of word communicate in Article 22 (5) of the Constitution of India. An attempt is made to show that this word communicate in section 50 (1) of the Code has also the same connotation. In order to appreciate the dispute from the facts it is necessary to consider what are the averments in the petition pertaining to this aspect and what is the reply. ( 17 ) MR. An attempt is made to show that this word communicate in section 50 (1) of the Code has also the same connotation. In order to appreciate the dispute from the facts it is necessary to consider what are the averments in the petition pertaining to this aspect and what is the reply. ( 17 ) MR. J. M. Panchal for the State submitted to me that throughout the petition except saying that conditions of section 50 (1) of the Code and Articles 21 22 and 22 (5) of the Constitution are breached no specific allegation is made about the information so that it could be replied effectively. In para 18 of the petition it has been submitted that it was necessary for the Investigating Officer to collect necessary data about the age of the complainant and whatever data was collected by the Investigating Officer so far on this point on the strength of which they take the complainant to be a minor below 16 years of age was not made known to the petitioners at the time of their arrest for an offence under sec. 363 of the Indian Penal Code notwithstanding the fact that it was obligatory for the police officer arresting the petitioners without warrant to do so as per the mandatory requirement of sec. 50 of the Code as well as Article 22 (1) of the Constitution. ( 18 ) THESE contentions are considered only to be rejected outright because sec. 50 (1) of the Code cannot require a police officer to inform a person arrested of the material which he has collected. The requirement is not the basis on which the Investigating Officer forms an opinion that an offence is made out but he has to inform full particulars of the offence for which such person is arrested. Those full particulars do not mean that information should be pertaining to how they believe those particulars to be correct what is the data collected by them or why they believe the evidence to be true etc. Those full particulars do not mean that information should be pertaining to how they believe those particulars to be correct what is the data collected by them or why they believe the evidence to be true etc. It will be a matter for the Investigation Officer to consider whether to submit a chargesheet or not and after the chargesheet is submitted to furnish all the documents to the accused person making it possible for him to effectively defend himself during the trial and the Court trying the case would consider whether there is sufficient evidence either to frame the charge or convict the accused. But by no stretch of imagination it can be said that Article 22 (1) of the Constitution or. section 50 (1) of the Code anticipate that entire material should be collected by the Investigating Officer before arresting a person under the normal law and circumstances and then only he should arrest a person and put forth the entire material before the arrested person. This argument is too fantastic to be accepted as that would be making the authority of police to arrest a person without warrant in such cases and also other provisions of the Code redundant which require the police to collect after arrest the data material documents statements etc. and then to submit a chargesheet and alongwith the chargesheet to send all the documents and evidence collected. In order to appreciate this I shall make reference to those provisions. ( 19 ) UNDER sec. 157 of the Code procedure for investigation is given. First part of sub-sec. (1) of sec. 157 of the Code provides that if from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under sec. 156 of the Code to investigate then he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report and then he can proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. This is merely on suspicion. Then provisions pertaining to examination of witnesses by police and statements of witnesses recorded by the police are mentioned in secs. 161 and 162 of the Code. This is merely on suspicion. Then provisions pertaining to examination of witnesses by police and statements of witnesses recorded by the police are mentioned in secs. 161 and 162 of the Code. Sec. 170 of the Code provides that if upon an investigation it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial. Then provisions are made that alongwith that report any weapon or other article which it may be necessary to produce before Magistrate shall have to be sent. Sec. 173 of the Code requires that after the investigation is completed the officer in charge of the police station has to forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the State Government wherein details are required to be mentioned. What details are to be filled in the said form are given in that sub-section. Under sub-sec. (5) of sec. 173 of the Code a police officer has to forward to the Magistrate along with the report all documents or relevant extracts thereon on which the prosecution proposes to rely other than those already sent to the Magistrate during the investigation and also the statements recorded under sec. 161 of the Code of all the persons whom the prosecution proposes to examine as its witnesses. Sub-sec. (7) of sec. 173 of the Code provides that where the police officer investigating the case finds it convenient to do so he may furnish to the accused copies of all or any of the documents referred to in sub-sec. (5) of sec. 173 of the Code. Under sec. 207 of the Code in any case where the proceeding has been instituted on a police report the Magistrate shall without delay furnish to the accused free of cost a copy of each of the various documents mentioned therein meaning thereby all the papers of investigation on which police have based the charge and proposed to lead evidence against the accused to prove the charge against the accused. These safeguards which are available in the Code cannot be ignored. These safeguards which are available in the Code cannot be ignored. These safeguards very categorically provide that before the accused is put to trial he is furnished with all the documents; it is made known to him as to what is the evidence collected by the police against him; it is made known to him as to who are the persons who are going to depose against him; it is made known to him as to what those persons have stated before the police. Can it be said that in such a case it will be necessary for the police to arrest the accused only after collecting all the material on which the police basis its suspicion or allegation ? ( 20 ) AS considered earlier under sec. 157 of the Code even for suspicion police have an authority to arrest an offender. Whether that suspicion ripens into an offence triable by the Court can be determined by the police on investigation Even after investigation if the police comes to the conclusion. that the police has been able to collect material to put up a case triable by the Court even then the Court trying the case would consider those materials to come to a conclusion whether the charge should be framed or not and if the charge is framed at the trial the accused is furnished an opportunity to lead evidence and the Court shall then consider whether the accused person should be convicted or acquitted. Only if conviction is there then there is detention in a prison on proved facts. Till then the liberty of a man is not jeopardised. So here is a full scope to the accused persons to know the evidence brought out against them by the prosecution even before the trial. Therefore there provisions of the Code can never be equated with the provisions of Articles 22 (4) or 22 (5) of the Constitution where the question of detention without trial only on the satisfaction of the Executive is there. . ( 21 ) THAT apart I shall consider the allegations made in the petition pertaining to Article 22 (1) of the Constitution and sec. 50 (1) of the Code. In paragraph 18 of the petition it is nowhere stated in specific words that the petitioners were not informed of the grounds of their arrest. . ( 21 ) THAT apart I shall consider the allegations made in the petition pertaining to Article 22 (1) of the Constitution and sec. 50 (1) of the Code. In paragraph 18 of the petition it is nowhere stated in specific words that the petitioners were not informed of the grounds of their arrest. This paragraph 18 of the petition has been replied by police Sub-Inspector Mr. J. M. Puwar of Kareli Baug Police Station Baroda in his affidavit-in-reply in paragraph 17 wherein it has been stated that the interpretations put by the petitioners on the provisions of sec. 50 of the Code are not correct and the arrest of the petitioners is not violative of any statutory provisions of sec. 50 (1) of the Code and/ or Article 22 (1) of the Constitution of India. This was done because no specific allegation was made. There is also another affidavit filed by Mr. V. M. Bhuria Police Inspector Incharge of Kareli Baug Station Baroda City. He has stated in paragraph 3 that on perusal of the record and information gathered from Mr. J; M. Puwar Police Sub-Inspector Kareli Baug Police Station Baroda City it was known that before the accused were arrested and at the time of arrest the accused were explained the particulars and grounds for which they were going to be arrested as required under sec. 50 of the Code and thereafter arrest was made. I am told at the Bar that on the very day of the arrest the accused were interrogated by the police pertaining to the allegations against them made by the complainant and also various other aspects. So it is the submission that the accused were informed of the charges against them and the grounds for which they were being arrested. ( 22 ) MR. Barot submitted that even if it is taken for granted what Police Inspector Mr. Y. M. Bhuria has stated to be true the requirement of communicating is not fulfilled and therefore the arrest of the petitioners is violative of the fundamental rights and therefore the proceedings against them should be quashed. In support of his arguments as stated earlier Mr. Barot has relied on various decisions which in fact pertain to the Detention Acts. Still however I shall refer to some important aspects from some of the rulings cited by him. I should also observe that Mr. In support of his arguments as stated earlier Mr. Barot has relied on various decisions which in fact pertain to the Detention Acts. Still however I shall refer to some important aspects from some of the rulings cited by him. I should also observe that Mr. Barot has relied on these rulings in also order to canvass proper meaning of the words grounds for such arrest according to him. ( 23 ) NOW it should be noted that in Article 22 (1) of the Constitution it has been stated that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest. while in Article 22 (5) of the Constitution also there is word grounds and that also mentions that the authority making the order to detain a person shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. So far as section 50 (1) of the Code is concerned there are two parts. First part is that if a person is arrested by a police officer without warrant then he is to be forthwith communicated full particulars of the offence for which he is arrested. Secondly if there is no offence then other grounds for such arrest are to be communicated. So if there is an offence then there is no question of grounds but full particulars have to be communicated. If arrest is only on (other) the grounds then the grounds are to be mentioned. Therefore importing of word grounds so far as this case is concerned to my mind does not arise. At any rate I shall consider how these grounds are interpreted in cases pertaining to Article 22 (5) of the Constitution and whether that meaning of to communicate or grounds could be imported into the arrest of a person for a criminal offence. At any rate I shall consider how these grounds are interpreted in cases pertaining to Article 22 (5) of the Constitution and whether that meaning of to communicate or grounds could be imported into the arrest of a person for a criminal offence. ( 24 ) IN KHUDIRAM DAS V. THE STATE OF WEST BENGAL A. I. R. 1975 SUPREME COURT 550 the Supreme Court had an occasion to consider the case of a person detained under the Maintenance of Internal Security Act 1971 It is observed therein that the grounds under Article 22 (5) mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which therefore the order of detention is based. It should be noted that when a person is being detained he has no scope to be tried. His personal liberty is curtailed without any trial on the satisfaction of an executive authority. In such cases the executive authority like the District Magistrate reaches his subjective satisfaction and therefore what were the grounds on the strength of which he reached to that subjective satisfaction would be the relevant grounds which should be communicated to the detenue so that he can make an effective representation against his detention. Here is not a case when there is scope for a person arrested under sec. 50 (1) of the Code to request the Magistrate to release him on bail to request the Magistrate not to frame the charge against him or even after trial request the Magistrate to acquit him etc. The word grounds appearing in Article 22 (5) of the Constitution was interpreted by the Supreme Court in that particular manner mainly because of two fold reasons as considered in para 6 of Khudirams case (supra ). It is observed therein that in the first place the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It is observed therein that in the first place the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenue so that not only the detenue may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty but he can also invoke the power of judicial review howsoever limited and peripheral it may be and secondly the detenue has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him how can he make an effective representation? If the grounds of detention are not communicated then the opportunity of making a representation would be rendered illusory. Therefore these provisions enable a detenue to make an effective representation. If on the strength of the grounds the detenu has to make representation then he should be communicated all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention These grounds are to be communicated in such a way that they must be sufficient to enable him to make a representation which on being considered may give relief to him. Cases of persons who are detained under the preventive Detention Act are on a different footing then of the persons who are arrested under the provisions of the Code. As considered earlier there is a scope for full trial and the accused has an opportunity to approach the Court firstly at the stage of getting bail secondly at the stage of framing the charge and thirdly at the stage of final order of conviction or acquittal. Under the Preventive Detention Act after the subjective satisfaction of the detaining authority the person detained has only scope to make representation against the proposed detention and if that is not considered the detenu has to invoke the power of judicial review which is limited and peripheral. Under the Preventive Detention Act after the subjective satisfaction of the detaining authority the person detained has only scope to make representation against the proposed detention and if that is not considered the detenu has to invoke the power of judicial review which is limited and peripheral. Therefore in such cases Courts and also the provisions of the Constitution afford sufficient safeguards so that a person cannot be detained without trial only at the sweet will of an executive authority. In the Code that provision is not there and therefore the emphasis put on the words communicate and grounds in detention actions cannot be imported into the arrest of a person under the Code. ( 25 ) NOW I shall refer to the decision of the Supreme Court in LALLUBHAI JOGIBHAI PATEL V. UNION OF INDIA 1981 CRIMINAL LAW JOURNAL 288. This Lallubhai Jogibhai was arrested under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (COFEPOSA) which also pertains to detention. In paragraph 20 the Supreme Court has considered what is meant by communication and grounds. In that case the detenu did not know English. The grounds of detention served on the detenu were drawn up in English. But one Police Inspector Mr. C. L. Antali who served the grounds of detention on the detenu filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. The Supreme Court considered that that was not a sufficient compliance with the mandate of Article 22 (5) of the Constitution which requires that the grounds of detention must be communicated to the detenu The Supreme Court further held that communicate is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands (emphasis supplied ). Now this much can apparently help Mr. Barot but the purpose of making these observations is clarified further and that is the whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. Now this much can apparently help Mr. Barot but the purpose of making these observations is clarified further and that is the whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. The Supreme Court rightly considered that if the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then the purpose is not served and the constitutional mandate in Article 22 (5) is infringed. These observations were made considering the specific provisions of Article 22 (5) of the Constitution in cases where personal liberty of an individual was to be curtailed merely by an executive order without trial. In such cases where provisions are made for a detenu to make representation against the order that representation cannot be made unless he has grounds in writing before him. There may be various grounds and if he has to make effective representation it would not be proper to consider that he should be capable enough to remember all the grounds in his mind and then make an effective representation. This is more so because under Article 22 (5) of the Constitution grounds are to be communicated to the detenu and he has to be afforded an opportunity of making a representation against the order. There is no question of making any representation under sec. 50 (1) of the Code. But under the Preventive Detention Act at least opportunity has to be afforded under Article 22 (5) of the Constitution to a person to make representation against the order and therefore it is necessary that grounds must be available to him whenever he wants to make an effective written representation and therefore grounds must be written. ( 26 ) MR. Barot came out with an argument that even though sec. ( 26 ) MR. Barot came out with an argument that even though sec. 50 of the Code is there and an opportunity or inquiry as provided under the Code would be available still however once a person is arrested without warrant and later on if he is released on bail he has only circumscribed rights so far as personal liberty is concerned because he has to attend the Court on every occasion when he is directed by the Court to attend and on failure of that attendance a sword is always hanging on him of being arrested or put in jail by forfeiture of surety bond. Therefore according to him this is also an impending abridgement of personal liberty and hence provisions of sec. 50 (1) of the Code should be considered on par with the provisions of Article 22 (5) of the Constitution so far as question of arrest is concerned. I am not in agreement with this argument advanced by Mr. Barot. After the arrest a person is to be produced before a Magistrate as early as possible or at least within 24 hours. Thereafter jurisdiction of the Magistrate starts as to what to do with the person arrested and that will be judicial discretion of a competent authority taking away any arbitrariness of an executive or a police officer. Therefore merely because after arrest a person is to be released on bail and he has to attend the Court whenever called for would not be a case on par with detention where communication or grounds as envisaged in Article 22 (5) of the Constitution would be available to him specially because he is arrested after making known for what he is being arrested orally or in this case as stated at the Bar by interrogating the accused and making known to him the allegations against him. I have already considered the facts of this case. Can it be said that police arrested the persons without telling them that they have taken away a young boy emasculated his male organ and made him an eunuch and therefore there is complaint against them? Can it be said that such complaint would not be communicating anything to the accused who are arrested ? Can it be said that police arrested the persons without telling them that they have taken away a young boy emasculated his male organ and made him an eunuch and therefore there is complaint against them? Can it be said that such complaint would not be communicating anything to the accused who are arrested ? Is it a case like the case of Madhu Limaye (Supra) where the persons were arrested without informing them anything except that they were arrested in a bailable offence? Cases have their own characteristics and in all cases principles propounded in peculiar types of cases cannot be applied. ( 27 ) MS attention is drawn to the decision of the Gauhati High Court in AJITKUMAR SARMAH V. STATE OF ASSAM 1976 CRIMINAL LAW JOURNAL 1303 In that case it was held that sec. 50 of the Code is mandatory. A citizens liberty cannot be curtailed except in accordance with law. When a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest in the case of such affidavit the police diary cannot be perused to verify the police officers claim of oral communication of such particulars. I must emphasise that throughout the petition on oath it is never stated that the petitioners were not communicated the grounds of their arrest even orally. Entire arguments are advanced on the word communicate to show that communication must be in writing and because there is nothing on the record that any information was conveyed to the accused in writing there is breach of sec. 50 (1) of the Code. This is too limited a proposition to consider the word communicate in sec. 50 of the Code. According to me this is too restricted a moaning. In the aforesaid case of Gauhati High Court the question pertained to the arrest of Ex-President of the Assam College Teachers Association and Head of the Department of Political Science of the Handique Girls College Gauhati. At night he was arrested and when he was to be arrested he demanded warrant but there was no warrant. It was stated by the police officers (as averred in the affidavit) that there was no warrant of arrest against him and they had not come to arrest him either. At night he was arrested and when he was to be arrested he demanded warrant but there was no warrant. It was stated by the police officers (as averred in the affidavit) that there was no warrant of arrest against him and they had not come to arrest him either. Even after that when he refused to comply with the request the police officers forcibly took him out of his house meaning thereby all throughout he was not even orally informed as to why be was arrested and on the contrary statement was made that he was not to be arrested. That is not the case here. ( 28 ) THE Calcutta High Court in GOVIND PRASAD V. THE STATE OF WEST BENGAL 1975 CRIMINAL LAW JOURNAL 124 had also an occasion to consider the provisions of sec. 50 of the Code. In that case the accused was arrested without warrant in Calcutta by the Ludhiana Police with the help of Calcutta Police. When the arrested person applied to the Magistrate at Calcutta for bail the Magistrate refused the Bail. The Calcutta High Court held that the Magistrate had power to grant bail under the new Code as a Magistrate having jurisdiction over the place of arrest has jurisdiction to release the person on bail. While considering these facts the Calcutta High Court observed that sec. 50 is a new one added on the recommendations of the Joint Committee. Its provisions are material and cannot be overlooked. It brings the law in conformity with the provisions of Article 22 (1) of the Constitution of India enabling the person arrested to move for habeas corpus to obtain his release and that section confers a valuable right and a non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. There can be no two opinions about this aspect. But the provisions of law have to be applied to each case on its peculiar facts. That would not mean that communication should be in writing and there would not be any communication even if the accused knew what they have done or were informed what they have done and for what they have been arrested. ( 29 ) IT should be noted that under ordinary law procedure under the Code is to be followed. That would not mean that communication should be in writing and there would not be any communication even if the accused knew what they have done or were informed what they have done and for what they have been arrested. ( 29 ) IT should be noted that under ordinary law procedure under the Code is to be followed. That procedure requires the investigating officer to send the report or first information report immediately to the Court and within 24 hours the person arrested is to be produced before the Magistrate. The F. I. R. at least prima facie gives out the facts pertaining to the offence in which the accused is involved. It is argued by Mr. Barot that a copy of the F. I. R. is never given to the accused. That may be but as stated earlier interrogation is made. At that time accused must have been informed about the allegations against them. It is not the case of the petitioners that they were never informed the grounds orally or the reasons of their arrest. In view of this challenge to the action of the police on the strength of Article 22 (1) or Article 27 (5) of the Constitution of India or sec. 50 (1) of the Code does not hold good. ( 30 ) ON this point I must also make a mention of the decision of this Court. (D. H. Shukla J.) in SONI NATVERLAL PRABHUDAS V. STATE OF GUJARAT SPECIAL CRIMINAL APPLICATION NO. 220 OF 1982 DECIDED ON 31st JANUARY 198 24 (2)G. L. R. 945 The said petition was also filed and argued by Mr. N. K. Barot who has argued this matter. Same averments were raised and the decisions of the Calcutta High Court and the Gauhati High Court referred to by me above were cited. Shukla J. on hearing the metter came to the same conclusion to which I have come above. He cansidered both the decisions and came to the conclusion that they did not help the case of the petitioners before him. He then appreciated the last paragraph of the decision of the Gauhati High Court wherein a request was made to quash the proceedings. He cansidered both the decisions and came to the conclusion that they did not help the case of the petitioners before him. He then appreciated the last paragraph of the decision of the Gauhati High Court wherein a request was made to quash the proceedings. Though the Gauhati High Court came to the conclusion that the arrest of the petitioner (before it) was not in accordance with law so far as the prayer for quashing the proceedings was concerned it was observed that that was not the stage at which the case could be quashed. It was further observed that it is possible that if there be no evidence against the petitioner the case may end in a final report of if there be a chargesheet unwarranted by material the petitioner can approach an appropriate Court at the appropriate time for quashing the case. But even on these facts the case was not quashed. This I am observing because contention of Mr. Barot is that the proceedings should he quashed. In the question of sec. 50 (1) of the Code before Shukla J. it was found that the accused was produced before the Magistrate. He consulted an Advocate who argued the application filed by the prosecution for remand and at no stage was any grievance made before the learned Magistrate about noncompliance with sec. 50 (1) of the Code. Practically same things have happened here. The present petitioners were produced before the Magistrate bail applications were argued and granted and no such point was raised. Mr. Barot is right that he was not representing the petitioners at that stage. But that would not make any change in the position of facts meaning thereby whether they were informed of what offence they have committed. If they did not know for what they were arrested they would have made a grievance immediately. Only because they did not know the provisions of law that would not make any difference about the fact that the prosecution had informed them of the offence they have committed. After having appreciated the decisions cited and arguments advanced Shukla J. in the above referred decision held that each case is required to be decided in the light of its own peculiar facts and that it is not one of the requirements of sec. After having appreciated the decisions cited and arguments advanced Shukla J. in the above referred decision held that each case is required to be decided in the light of its own peculiar facts and that it is not one of the requirements of sec. 50 (1) of the Code that the communication of full particulars of the offence for which the accused is arrested should be made or other grounds for such arrest should be necessarily conveyed to him in writing. Shukla J. also held that requirements of Article 22 (1) and Article 22 (5) of the Constitution are laid in relation to different contingencies and then it was considered that Articles 22 (4) and 22 (5) of the Constitution were required to be considered in the arena of Preventive Detention Act as held by me. I am in full agreement with the observations of Shukla J. and I do not find anything to differ from the conclusion he has arrived at. Therefore so far as this point is concerned it is settled. ( 31 ) RELIANCE was placed on the decision of the Orissa High Court in MANGAL HEMRUM V. STATE OF ORISSA 1982 CRIMINAL LAW JOURNAL 687 wherein in paragraph 12 it was considered that an order of detention has to pass the test of Article 21 of the Constitution every moment of its existence. It is the obligation of the Magistrate and every other authority to justify the detention by reference to law. He who infringes the basic right must have the sanction for it. So it follows that the Magistrate must be in a position to justify to the accused the latters detention and it is not for the accused to show to the Magistrate that his detention is illegal. These observations were made with reference to the provisions of secs. 167 (2) and 437 of the Code. Under sec. 167 (2) of the Code an accused person is entitled to be released on bail if he is ready to offer bail the moment the period of 60 or 90 days as required under the section is complete and chargesheet is not filed meaning thereby investigation is not completed. 167 (2) and 437 of the Code. Under sec. 167 (2) of the Code an accused person is entitled to be released on bail if he is ready to offer bail the moment the period of 60 or 90 days as required under the section is complete and chargesheet is not filed meaning thereby investigation is not completed. Under these circumstances it was held by the Orissa High Court that it is not necessary for the accused to give application and he should be released on bail because that detention would be without any reason and therefore violative of Article 21 of the Constitution because provision of law does not permit detention. there is not a case of like nature because the detention or arrest whatever was was made by the Police who according to the affidavit informed the petitioners as to what the offence against them was. The charge sheet could not be filed in the instant case due only to the stay of this Court in this matter granted by Majmudar J. while issuing Rule. ( 32 ) SO this takes out the first two grounds advanced by Mr. Barot. ( 33 ) THE third ground is that the Baroda Court has no jurisdiction to try petitioner No. 2 and original accused Nos. 3 to 5. In my view this ground would not be available to Mr. Barot in view of the decision of this Court (S. B. Majmudar J ) in LILADE SITADE V. STATE 23 GUJARAT LAW REPORTER 734 SPECIAL CRIMINAL APPLICATION NO. 1171 OF 1982 (SUPRA ). After having considered various arguments advanced Majmudar J. considered that the common intention of accused no. 1 (petitioner No. 1 here) in enticing the complainant was to take him to their fold. It was considered in paragraph 8 that accused nos. 1 and 2 (present petitioners) at Baroda are alleged to have kidnapped the complainant with a view to ultimately getting him emasculated and to bring him into their fold of professional beggers. Mr. Barot has taken exception to this finding that in the complaint it is not stated anywhere that right from the beginning it was the intention of accused nos. I and 2 or at least accused no. 1 to take the complainant to their fold. It is really surprising grievance made by Mr. Barot. Mr. Barot has taken exception to this finding that in the complaint it is not stated anywhere that right from the beginning it was the intention of accused nos. I and 2 or at least accused no. 1 to take the complainant to their fold. It is really surprising grievance made by Mr. Barot. What was the earthly reason for petitioner No. 1 to tempt the complainant by offering him a good job except to take him into their fold? Apart from that the circumstances clearly show that immediately after the complainant was taken by accused No. 1 he was first taken by accused Nos. 1 and 2 to the Akhada of Eunuchs showing the immediate desire of these two accused petitioners of taking the complainant into their fold. The further action of taking the complainant to Kalol and castrating him at least prima facie establishes that this was the only intention in tempting the complainant and none else. Majmudar J. in paragraph 8 of the aforesaid decision considering the part played by all the accused held that the role played by accused Nos. 4 and 5 represents the role of persons who have allegedly acted as limbs of other accused who were eunuchs According to him therefore it must prima facie be held that the offence of emasculation alleged to have been committed at Kalol in Mehsana District was part and parcel of the comprehensive transaction of kidnapping and castrating the concerned victim with a view to making him a eunuch who could be a useful addition to their class of professional beggers. So the contention of jurisdiction was already decided. Mr. Barot wanted me to come to a different conclusion from the one arrived at by Majmudar J. and if I come to a different conclusion he requested that I should refer the matter to larger Bench. But I am in full agreement with the findings of Majmudar J. and therefore I do not find any necessity to make a reference to a larger Bench nor do I find that this point now requires any elaborate discussion on my part. ( 34 ) POINT no. 4 the joint trial of accused no. 1 with other accused is not permissible is also answered by the judgment. Of course an argument is advanced on a very ingenous ground. ( 34 ) POINT no. 4 the joint trial of accused no. 1 with other accused is not permissible is also answered by the judgment. Of course an argument is advanced on a very ingenous ground. It is a patent fact than offence of kidnapping is not a continuous offence and the moment a person is taken out of lire lawful guardianship the matter is over. Therefore it is argued that if at all it is accepted for the time being as a part of argument that accused No. 1 kidnapped the complainant which of course is a question argued at length by Mr. Barot as not to be kidnapping; then as the offence of kidnapping was over accused No. 1 should be tried separately because there is nothing in common so far as other accused are concerned. Now one thing cannot be forgotten that after the complainant was allegedly tempted by petitioner No. 1 to leave the hotel and to go for better service which was offered by petitioner No 1 he was taken to Akota. Thereafter it is the case that petitioner No. 2 went to the complainant at the house of petitioner no. 1 in Akota. It is also the case of the complainant that both the petitioners Nos. 1 and 2 told him that they would give him a better service in a hotel and so saying he was taken to the Akhada of Eunuchs. Now these are the allegations. Whether these allegations on evidence would make out continuance of the offence or not would be a matter to be considered by the Court on appreciation of evidence. But the allegations show that both the petitioners tempted or lured the complainant and took him to the Akhada of Eunuchs. At this stage I do not make any observation as to whether the second action also would be kidnapping but agreeing with Mr. Barot that one who removes a person from the custody of lawful guardian is only a kidnapper; after kidnapping is over even though that person kidnapped may be a minor abduction would start and Courts have held that abduction is a continuing offence with which Mr. Barot has no dispute. Barot that one who removes a person from the custody of lawful guardian is only a kidnapper; after kidnapping is over even though that person kidnapped may be a minor abduction would start and Courts have held that abduction is a continuing offence with which Mr. Barot has no dispute. ( 35 ) THE Allahabad High Court in EMPEROR V. NANHUA DHIMAR A. I. R. 1931 ALLAHABAD 55 had an occasion to consider a case where a couple husband and wife enticed a 12 year girl to leave her guardian from Moradabad in their company with intent that she may be or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person. Later on they were joined by D B and K and removed the girl from place to place subsequently selling her. All the accused were tried together at one place i. e. Moradabad. It should be noted that the girl was kidnapped from Moradabad by Nanhua Ahyria and his wife who enticed the girl. At that time she was staring with her parents at Moradabad. After taking the girl from Moradabad Nanhua and his wife took her to Hapur where they were joined by Nanhua Dhimar and Bihu Chamar. Then Nanhua Ahyria and others took the girl to Hafizabad. There they were joined by one Kesri Chamar resident of Hapur. From Hafizabad all the five persons went to Rampur. There they sold the girl to one Barkat Ram. They were tried before the Sessions Judge at Moradabad who convicted the couple from Moradabad and referred the cases of other accused to the High Court with a recommendation that the commitment of those persons be quashed as no offence was committed by them within the jurisdiction of the Court of Sessions at Moradabad. The Allahabad High Court came to the conclusion that the Moradabad Magistrate had jurisdiction to try the cases of other accused also. Under these facts of the case the Allahabad High Court observed that the offence of kidnapping from lawful guardianship is not a continuing offence. As soon as the minor is actually removed from the custody of his or her guardian the offence is committed. The offence is not a continuing one as long as the minor is kept out of guardianship but unlike kidnapping abduction is a continuing offence for which some decisions were relied on. As soon as the minor is actually removed from the custody of his or her guardian the offence is committed. The offence is not a continuing one as long as the minor is kept out of guardianship but unlike kidnapping abduction is a continuing offence for which some decisions were relied on. While considering the provisions of sec. 362 and 366-A of the Indian Penal Code the Allahabad High Court considered that there may be abduction without the removal of a person from lawful guardianship and then considered that secs. 362 and 366-A of the Indian Penal Code have some salient common ingredients and that an offence under sec. 366-A is a continuing offence. This decision shows that the moment kidnapping ends abduction starts and abduction is a continuing offence and therefore it was considered that those persons who kidnapped and also these persons who joined them later on and sold the girl to somebody can be tried jointly at the place where the actual act of kidnapping took place. Mr. Barot wanted to make a fine distinction so far as kidnapping and abetment is concerned that the persons can be said to have committed the offence of kidnapping if there is unity of minds prior to kidnapping. That point for the time being is not disputable when the facts of the Allahabad case clearly show that so far as the facts of this case are concerned the Court at Baroda would have jurisdiction to try the case and all the persons can be tried in the same case in that Court. In Allahabad case girl Ram Kali was kidnapped from Moradabad taken to Hapur where other accused met. Then she was taken to Hafizabad where she was sold. The part played by all the accused finally at Hafizabad was connected to early kidnapping and later on considered as abduction and all of them were ordered to be tried together by Moradabad Court from where the act of kidnapping took place. In view of this I am of the view that Allahabad judgment is quite correct and the objection of Mr. Barot that petitioner No. 2 cannot be tried with accused Nos. 3 to 5 is not justified and also the contention that the joint trial of accused No. 1 with other accused is not permissible also has no force. In view of this I am of the view that Allahabad judgment is quite correct and the objection of Mr. Barot that petitioner No. 2 cannot be tried with accused Nos. 3 to 5 is not justified and also the contention that the joint trial of accused No. 1 with other accused is not permissible also has no force. ( 36 ) THEN comes the question about quashing the proceedings. It is the case of Mr. Barot that the averments made in the complaint do not make out any ingredient of offence with which petitioner No. 1 is charged. The case of Mr. Barot is that there is no kidnapping. In order to support his case that there is no kidnapping Mr. Barot referred to the averments made in the complaint. I have already referred to those averments and therefore I do not repeat them. But it is the contention of Mr. Barot that those averments do not anywhere show that the complainant was taken away from any lawful guardianship. According to him under sec. 361 of the Indian Penal Code Kidnapping from lawful guardianship is defined. It reads. "361 Whoever takes on entices any minor under sixteen years or age if a male or under eighteen years of age if a female or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. "it is therefore the submission of Mr. Barot that unless the prosecution proves that the complainant was under the lawful guardianship of some body there would not be kidnapping. It is his case that according to the averments in the complaint itself the complainant had left Chhota Udepur and was serving at Baroda of his own and he was a master of himself without any guardian to look after him Now these are the arguments which can be advanced after evidence is led because as considered earlier it was the case of the complainant in the complaint that for about one year he stayed in station area. What that station area is is still not clear. Secondly he was surving at the canteen in Baroda and there must be somebody to look after him and his welfare. What that station area is is still not clear. Secondly he was surving at the canteen in Baroda and there must be somebody to look after him and his welfare. ( 37 ) IN THAKORLAL D. VADGAME V. STATE OF GUJARAT (1973) 2 SUPREME COURT CASES 413 the Supreme Court appreciate the words whoever takes or entices any minor ill sec. 361 of the Indian Penal Code and observed as to what it actually means. According to the Supreme Court the word takes does not necessarily connote taking by force and it is not confined to use of force actual or constructive. These words merely mean to cause to go to escort or to get into possession. We are not concerned with these aspects so far as the present petition is concerned because it is not in dispute that the complainant was taken in alurement of getting a good job. The question to be considered is whether the complainant was under the care and custody of any guardian when he was taken. According to Mr. Barot there was no guardian and therefore there is no taking and consequently no kidnapping. ( 38 ) IN this judgment of Thakorlal Vadgama the Supreme Court while considering the decision in STATE OF HARYANA V. RAJA RAM (1973) 1 S. C. C. 544 so far as the word takes is concerned observed that the gravemen of this offence (under 505. 351 of the Indian Penal Code) lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian. These words according to the Supreme Court are significant. The use of the word keeping in the context connotes the idea of charge protection maintenance and control: further the guardians charge and control appears to be competible with the independence of action and movement of the minor the guardians protection and control of the minor being available was never necessity arises. By this the Supreme Court answered the allegations of the persons like the present petitioners was say that one a minor is minor here and there though he might have intention to go back to the guardian and might have come temporarily with his accord for service at Baroda he cannot be said to be in keeping of any guardian. By this the Supreme Court answered the allegations of the persons like the present petitioners was say that one a minor is minor here and there though he might have intention to go back to the guardian and might have come temporarily with his accord for service at Baroda he cannot be said to be in keeping of any guardian. Therefore the Supreme Court has considered the connotation of the word keeping. It may be a matter of evidence on evidence as to what were the circumstances under which the complainant left Chhota Udepur and came to Baroda for service and what were the ties which continued between him had his family members at Chhota Udepur. The Supreme Court his specifically observed that the guardians charge and control appears to be compatible with the independence of action and movement in the minor. Mr. Barot suggested that once the movements of a minor are independent then they would he incompatible with the control of the guardian so as to bring in the element of keeping. This very aspect has hence considered by the Supreme Court and negatived holding that both are compatible with each other. If the argument of Mr. Barot is accepted then many hutment dwellers or persons in rags who send their children somewhere even outside their own village or outside their province cannot be said to be the guardian making such minors available for being taken anywhere without any protection of law. If that is the idea to be imported then there will be no safety of minors throughout the country because unfortunately ours is a country where young children are required to undergo drudgery of service and/or slavery. Should the protection of provisions of law of kidnapping be denied to them even though they might have continued their links with their parents at their place even though they serve at another place? Therefore the enlarged notion about the word keeping accepted by the Supreme Court in case of Thakorlal Vadgama (Supra) can be applied with equal force to the present and such other cases. Whether ultimately that was really a keeping of guardianship or not would be a matter to be considered on evidence and it cannot be gone into at this stage. ( 39 ) HERE at least there is no case of the minor (complainant) abandoning the protection of his guardian permanently. Whether ultimately that was really a keeping of guardianship or not would be a matter to be considered on evidence and it cannot be gone into at this stage. ( 39 ) HERE at least there is no case of the minor (complainant) abandoning the protection of his guardian permanently. Therefore at this stage it cannot be said that there is no prima facie case for kidnapping. It was argued that so far as case under sec. 326 of the Indian Penal Code was concerned it was at Kalol and at Baroda case was only of kidnapping by accused No. 1 and then accused Nos. 1 and 2 took the complainant to the Akhada of Eunuchs in Baroda. But so far as further aspects are concerned accused No. 1 had never taken part because it was only accused no. 2 who had gone to Kalol with the complainant. Therefore according to Mr. Barot there is no connection between the act of petitioners Nos. 1 and 2 and 2 to 5. Therefore petitioners Nos. 1 and 2 cannot be tried together and petitioner No. 2 cannot be joined as an abetter to petitioner No. 1 as once the complainant is taken out of the lawful guardianship the offence of kidnapping is over and it is not a continuous offence. I have considered this aspect earlier on consideration of abduction. But it will be worthwhile to refer to various sections of the Indian Penal Code pertaining to the offences of kidnapping and abduction. I am observing this because though police may put any section on the material available on the strength of the evidence collected by the police it is the function of the Magistrate to frame the charge; it will be the duty of the prosecution to assist the Court in framing proper charge; and also it will be the duty of the defence to assist the Court in the same way and the a it is the duty of the Magistrate to hear the parties and consider the various documents and the frame the charge. Therefore whatever charge mentioned by the police would not be a charge with which ultimately the accused would be tried and therefore it cannot be said that because a particular charge would not fit in the proceedings should be quashed because this is not a case where prima facie no offence is there. Therefore whatever charge mentioned by the police would not be a charge with which ultimately the accused would be tried and therefore it cannot be said that because a particular charge would not fit in the proceedings should be quashed because this is not a case where prima facie no offence is there. What would be the offence would be a matter to be decided by the Magistrate framing the charge on evidence collected by the police. ( 40 ) SECTION 363 of the Indian Penal Code merely punishes kidnapping while sec. 363-A punishes kidnapping or maiming a minor for purpose of begging. Whether this castrating is a type of maiming for the purpose of begging or not will be a matter to be considered on evidence but the fact remains that the complainant was made eunuch just for the purpose of begging and it is his clear case in the complaint that he had collected an amount of Rs. 5 0 out of begging. It is the allegation of the complainant himself that he had remained unconscious for six days after the act of castration. This was such a dangerous act which would have ultimately resulted in death. Therefore the consideration whether offence under sec. 364 of the Indian Penal Code is committed or the offence under sec. 365 of the Indian Penal Code of kidnapping or abducting with intent secretly and wrongfully to confine a person is committed or the offence under sec. 367 of the Indian Penal Code about k idnapping or abducting in order to subject person decided by the learned Magistrate on the evidence collected by the police before framing the charge. This is a matter of disputed questions of facts which are to be resolved. For the time being question of fact remains that the complainant was lured by petitioner No. 1 taken to his house where petitioner No. 2 came and both petitioners Nos. This is a matter of disputed questions of facts which are to be resolved. For the time being question of fact remains that the complainant was lured by petitioner No. 1 taken to his house where petitioner No. 2 came and both petitioners Nos. 1 and 2 took the complainant to the Akhada of eunuchs at Baranpura in Baroda from where he was taken to Kalol where the act of castrating was done and therefore it cannot be said that there is no criminal offence at all and therefore arrest or release on bail of the petitioners can not be said to be so patently illegal as to be interfered by this Court in a writ petition under Articles 226 and 227 of the Constitution engulfing the breach of constitutional rights. In fact there is no breach of any fundamental rights. There is no breach of any provision of the Code and therefore the grievance of the petitioners is not justified. . ( 41 ) BEFORE parting with the judgment I shall consider the request of Mr. Barot that his reference to the decision in STATE OF MADHYA PRADESH V. SHOBHARAM AIR 1966 SUPREME COURT 1910 should be effectively dealt with. In that case there was complaint of trespass registered against the respondents under sec. 447 of the Indian Penal Code who were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police. The case against the respondents was thereafter put up before the Nyaya Panchayat a Court established under the Madhya Bharat Panchayats Act 1949 In that Court fresh bonds were executed by the sureties on behalf of the respondents to ensure their presence during the trial. The Nyaya Panchayat after the trial convicted and sentenced the respondents to a fine of Rs. 75. 00 each. That conviction was upheld by the Additional Sessions Judge but the High Court set aside the conviction. Therefore the State went in appeal to the Supreme Court. Challenge was also to sec. 63 of the Panchayats Act which provided that no legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute case or proceeding pending before the Nyaya Panchayat. Therefore the State went in appeal to the Supreme Court. Challenge was also to sec. 63 of the Panchayats Act which provided that no legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute case or proceeding pending before the Nyaya Panchayat. This was considered by the High Court as well as the Supreme Court as a breach of Article 22 (1) of the Constitution and therefore said section was void in respect of persons who were arrested. No such position arises in the instant case and there is no question of any section of the Code or the Indian Penal Code being void. There is also no question of service of legal practitioner not being available. But Mr. Barot laid stress on the observations of the Supreme Court pertaining to Article 22 (1) of the Constitution. In para 10 the Supreme Court considered that a question was mooted at the Bar that since at the trial the respondents were not under arrest having been released on execution of bonds they were no longer entitled to the constitutional right conferred by Article 22 (1 ). But Sarkar C. J. who delivered the judgment for himself and Mudholkar J. observed that as at present advised they were not inclined to accede to that view and considered it unnecessary to pursue the matter further in that case. Hidayatullah J. in his judgment considered the provisions of Articles 21 and 22 of the Constitution. He considered that Articles 21 and 22 in a sense go together and they cannot be treated as interrelated or interdependent. Article 21 prohibits arbitrary deprivation of life and personal liberty by laying down that these two possessions can only be taken away in accordance with procedure established by law. Article 21 does not indicate what that law must be nor does Article 22 say this. Article 22 no doubt advances in a way the purpose of Article 21 when it specifies some guaranteed rights available to persons arrested or detained and lays down the manner in which persons detained preventively must be dealt with. These observations on the contrary affirm my views pertaining to distinction between ordinary arrest and arrest under the Preventive Detention Act and only that arrest and trial should be according to the procedure established by law. These observations on the contrary affirm my views pertaining to distinction between ordinary arrest and arrest under the Preventive Detention Act and only that arrest and trial should be according to the procedure established by law. It is of course true that in para 21 Hidayatullah J. has observed that there cannot be any different kinds of arrest and arrest is arrest whatever the reason. There can be no dispute about it. Once arrest is there further proceedings will be according to the provisions concerned in the arrest but the initial arrest is common whether it is for detention or for an offence under the Indian Penal Code or any other provision of law. Only question of difference arises as to what should be the interpretation of requirement of law when the arrest is made. So far as Article 22 (1) is concerned a person is not to be arrested or detained in custody without being informed of the grounds for which such arrest is made. Sec. 50 (1) of the Code says that he should be communicated full particulars of the offence for which he is arrested. Can it be said that by considering these two provisions of being informed and communicated provisions of Article 22 (5) of the Constitution be imported into them ? At the time of arrest Article 22 (1) of the Constitution comes and Article 22 (4) and 22 (5) come after the stage of arrest when a person is to be detained in pursuance of an order made under law. When the arrest is made he would be informed that he is to be detained and then arrested. But after the arrest is made his detention continues and provisions of Article 22 (4) and Article 22 (5) would come in play. Therefore argument advanced by Mr. Barot would not be available to him. Even though we consider that arrest is arrest either for detention or normal offence it cannot be said that so far as provisions of Article 22 (5) of the Constitution pertaining to detention are concerned should be imported into this arrest also. In the aforesaid decision in paragraph 34 Bachawat J speaking for himself and J. M. Shelat J; has observed that both parts of clause (1) of Article 22 come into play as soon as any person is arrested. In the aforesaid decision in paragraph 34 Bachawat J speaking for himself and J. M. Shelat J; has observed that both parts of clause (1) of Article 22 come into play as soon as any person is arrested. Clause (2) of Article 22 then goes on to give every person who is arrested and detained the right to be produced before a Magistrate within 24 hours and the right to freedom from detention beyond the said period without the authority of a Magistrate etc. Therefore even this judgment makes a clear distinction of procedure and right so far as arrest simpliciter is concerned and further proceeding on further detention is concerned. In view of this I do not think that this decision would in any way help Mr. Barot. ( 42 ) IN the result the petition is dismissed. Rule is discharged. The stay granted against filing of the chargesheet is vacated but the framing of the charge by the learned Magistrate shall be done only after 20-6-1983. ( 43 ) MR. Barot at this stage made an oral application to certify this case to be fit one for appeal to the Supreme Court. As per the rules of this Court question of grant of certificate on such request will have to be resolved by a Division Bench. Therefore consideration of the oral request of Mr. Barot may be entrusted to a Division Bench at the earliest. This would not debar the right of the petitioners to file a Letters Patent Appeal if permissible according to law. Petition dismissed. ( 44 ) THIS group of appeals filed by the Employees State Insurance Corporation (hereinafter referred to as the Corporation) is directed against a common judgment and order dated 10/12/1982 passed by the Employees Insurance Court Ahmedabad (hereinafter referred to as E. I. Court) dismissing its appeals filed against the decisions of the Medical Appeal Tribunal (hereinafter referred to as the Tribunal) and the only question which is raised in these appeals is whether the E. I. Court was right in holding that the appeals filed by the Respondents in these appeals before the Tribunal were maintainable and that they were not barred by principles of estoppel or waiver. ( 45 ) THE facts in these appeals are common except for the fact that the percentage of permanent disability or the value of permanent disability suffered by each of the respondents varies. The respondent in each appeal (hereinafter referred to as respondent) is an insured person as defined in sec. 2 (14) of the Employees State Insurance Act 1948 (hereinafter referred to as the Act ). The respondent suffered from disablement as a result of employment injury sustained as an employee under the Act. It is not in dispute that the respondent suffered from permanent disability as a result of the employment injury and was entitled to periodical payments for such disablement in view of the decision given by the Medical Board to whom reference was made by the Corporation as provided in sec. 54-A of the Act. The decision of the Medical Board was communicated to the respondent in from B. I. 3 specified by the Director General under regulation 73 of the Regulations framed by the Corporation in exercise of the powers conferred on it by sec. 97 of the Act (hereinafter referred to as the Regulations ). In this from B. I. 3 which communicated the decision of the Medical Board it was stated that disablement suffered by the respondent was permanent and that the assessment of permanent disablement was final. The percentage of the permanent disablement suffered by the respondent and the rate at which he was entitled to claim benefit for such permanent disablement were also stated. The respondent was informed that if he was not satisfied with the decision of the Medical Board he may appeal to the Tribunal or to the E. I. Court and give notice of appeal to the Regional Office of the Corporation in the prescribed form. The respondent was further informed In the mean time you may claim benefit at the above rate. This is without prejudice to your right to claim benefit at higher rate that may be awarded to you on appeal. It appears that the decision of the Medical Board in form B. I. 3 was communicated along with the letter in form ESIC. 154. In this letter also the percentage of disability suffered by the respondent and the rate at which the respondent was entitled to claim benefit for such permanent disablement were stated. It appears that the decision of the Medical Board in form B. I. 3 was communicated along with the letter in form ESIC. 154. In this letter also the percentage of disability suffered by the respondent and the rate at which the respondent was entitled to claim benefit for such permanent disablement were stated. It was also made clear that the assessment of permanent disability was final. By the aforesaid letter the respondent was called upon to state within 15 days from the receipt of the letter whether he desired to claim commutation of periodical payments of permanent disablement benefit (hereinafter for the sake of brevity referred to as p. d. b.) and that if he failed to do so it would be assumed that he did not desire to claim commutation. It may be mentioned here that the respondent was entitled to claim commutation of periodical payment of p. d. b. under regulation 76-B of the Regulations. The form in which the respondent was required to apply for commutation of periodical payment of p. d. b. is known as G. R. O. 197. This form is not prescribed by the Act or the Rules or the Regulations but it is specified by the Corporation. These forms are either printed or cyclostyled by the Corporation and they are available in the office of the Corporation. In this application in form G. R. O. 197 which as stated above the respondent was required to make within 15 days of the receipt of the letter in form ESIC 154 the respondent was required to state: (i) that he was accepting the assessment of his permanent disability determined by the Medical Board; (ii) that he 11as not preferred application appeal to the Tribunal under Regulation 74; and (iii) that in future also he does not propose to prefer application-appeal to the Tribunal and that he waives his right to prefer appeal under regulation 74. The respondent made application in form G. R. O. 197. After receipt of this application in form GRO 197 the Corporation commuted in lump sum periodical payments admissible to the respondent under the provisions of the Act and the Regulations. The respondent being dissatisfied with the assessment of permanent disability made by the Medical Board preferred appeal to the Tribunal. The respondent made application in form G. R. O. 197. After receipt of this application in form GRO 197 the Corporation commuted in lump sum periodical payments admissible to the respondent under the provisions of the Act and the Regulations. The respondent being dissatisfied with the assessment of permanent disability made by the Medical Board preferred appeal to the Tribunal. The Corporation raised a preliminary objection before the Tribunal that the appeal preferred by the respondent was not maintainable on the grounds: (i) that the respondent was estopped from preferring appeal in view of the fact that he had accepted the benefit of commutation under regulation 76-B specifically on the condition that he would not prefer an appeal; and (ii) that in any case the respondent had agreed to waive his right of appeal. The application made by the respondent in GRO 197 was not produced before the Tribunal. The Tribunal rejected the Corporations contentions and while allowing the respondents appeal increased the percentage of permanent disability and consequently the rate of p. b. d. ( 46 ) THE Corporation feeling aggrieved by the order passed by the Tribunal carried the matter in appeal before the E. I. Court. The contention regarding maintainability of appeal of the respondent before the Tribunal was reiterated before the E. I. Court. The E. I. Court however by its impugned judgment and order rejected this contention and upheld the decision of the Tribunal on merits. It may be mentioned here that as a result of the appeal being allowed by the Tribunal rate of p. d. b. as stated above was raised or increased but except in two cases this rate did not exceed Rs. 1. 50 per day. It is stated before me that in case of respondent in first Appeals Nos. 482 of 1983 and 501 of 1983 the rate of p. d. b. is more than Rs. 1. 50 per day but in their cases also the rate does not exceed Rs. 2. 00per day. ( 47 ) THE only ground on which the decision of the E. 1. Court is assailed is that it has erred in holding that the Appeal of the respondent filed before the Tribunal was maintainable. 1. 50 per day but in their cases also the rate does not exceed Rs. 2. 00per day. ( 47 ) THE only ground on which the decision of the E. 1. Court is assailed is that it has erred in holding that the Appeal of the respondent filed before the Tribunal was maintainable. It is urged that the respondent had while applying for commutation under regulation 76-B in terms stated that he had not appealed against the decision of the Medical Board and that in future also he would not challenge this decision by way of appeal. It was relying on and acting upon this specific statement and agreement made by the respondent that the Corporation has given to the respondent benefit of commutation as provided in regulation 76-B. According to the Corporation it was not under an obligation to commute p. d. b. awarded to the respondent unless and until the question of such benefit was finally decided by the appellate authority namely the Tribunal or the E. I. Court as the case may be. Therefore allowing any claim for commutation under regulation 76-B the insured person was required either to wait till the final decision was rendered by the appellate authority or to agree not to challenge the decision of the Medical Board by way of appeal. It was entirely a matter for the insured person to decide whether he wanted the benefit of commutation immediately after the decision of the Medical Board or whether he wanted to wait for such commutation till the decision was finally given by the appellate authority in case he wanted to challenge the decision of the Medical Board by way of appeal. The respondent wanted to take the benefit of commutation after the decision of the Medical Beard and it was therefore that he gave application in form GRO 197 stating that he had not prefered appeal nor did he want to prefer appeal against the decision of the Medical Board. Since the respondent did not want to prefer appeal against the decision of the Medical Board it was not necessary for the Corporation to wait till the expiry of the period of limitation for filing such appeal. for giving benefit of commutation. Since the respondent did not want to prefer appeal against the decision of the Medical Board it was not necessary for the Corporation to wait till the expiry of the period of limitation for filing such appeal. for giving benefit of commutation. It accepted the statement made by the respondent and undertake in a given by him in the application in Form No. GRO 197 at its face value and acting on such statement and undertaking gave to the respondent the benefit of commutation under regulation 76-B. Thus according to the Corporation it had altered its position and acted in detriment to its interest in acting upon the aforesaid statement and undertaking. Under the circumstances the respondent was estopped from preferring appeal against the decision of the Medical Board. According to the Corporation the principle of promissory estoppel would also be attracted and consequently the respondent was estopped from preferring appeal irrespective of the fact whether or not the Corporation had acted ind etriment to its interest or whether or not there was consideration for the agreement entered into by the respondent. It may be mentioned here that the question of promissory estoppel has been raised for the first time in the present appeals. In other words this question was not raised either before the Tribunal or the E. T. Court. It is further submitted on behalf of the Corporation that there is a clear agreement not to prefer appeal and the agreement shows that the respondent had waived his right of appeal. In other words according to the Corporation the respondents appeal before the Tribunal was barred by principle of waiver also. ( 48 ) IN order to appreciate the contentions which are raised on behalf of the Corporation it is necessary to refer to some of the provisions of the Act and the Regulations. Sec. 46 (1) (c) provides : 46. Benefits.- (1) Subject to the provisions of this Act the insured persons their dependents or the persons hereinafter mentioned as the case may be shall be entitled to the following benefits namely: x x x x x (C) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit ). Sec. 51 of the Act provides as under :-"51. Subject to the provisions of this Act and the regulations if any (a) a person who sustains temporary disablement for not less than three days (excluding the day of the accident) shall be entitled to periodical payment for the period of such disablement in accordance with the provisions of the First Schedule; (b) a person who sustains permanent disablement whether total or partial shall be entitled to periodical payment for such disablement in accordance with the provisions of the First Schedule; provided that where permanent disablement whether total or partial has been assessed provisionally for a limited period or finally the benefit provided under this clause shall be payable for that limited period or as the case may be for life. Sec. 54 provides as under :"54. Determination of question of disablement.-Any question- (a) whether the relevant accident has resulted in permanent disablement; or (b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or (c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or (d) in the case of provisional assessment as to the period for which such assessment shall hold good. SHALL be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the disablement questions. "sec. 54-A provides as under :"54. A. Reference to medical boards and appeals to medical appeal tribunals and Employees Insurance Courts.- (1) The case of any insured person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement question and if on that or any subsequent reference the extent of loss of earning capacity of the insured person is provisionally assessed it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment. (2) If the insured person or the Corporation is not satisfied with the decision of the medical board the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to (i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribeed manner and within the prescribed time to the Employees Insurance Court or (ii) the Employees Insurance Court directly. Sec. 62 reads as under :"62 Persons not to commute cash benefits. Save as may be provided in the regulations no person shall be entitled to commute for a lump sum any periodical payment admissible under this Acts. "sec. 70 of the Act provides :"70 Repayment of benefit improperly received. (1) Where any person has received any benefit or payment under this Act when he is not lawfully entitled thereto he shall be liable to repay to the Corporation the value of the benefit or the amount of such payment or in the case of his death his representative shall be liable to repay the same from the assets of the deceased if any in his hands. (2) The value of any benefit received other than cash payments shall be deter mined by such authority as may be specified in the regulations made in this behalf and the decision of such authority shall be final. (3) The amount recoverable under this section may be recovered as if it were an arrear of land revenues. "regulations 72. 73 76 and 76-B provide as under :-"72. (3) The amount recoverable under this section may be recovered as if it were an arrear of land revenues. "regulations 72. 73 76 and 76-B provide as under :-"72. Reference to a Medical Board.-A reference to the Medical Board may be made- (a) at any time not later than twelve months in cases where claim for temporary disablement benefit is made for an employment injury from the date of the final certificate issued in respect of the spell of temporary disablement commencing on or immediately after the date of the occurrence of that injury or from the date of the occurrence of an employment injury in cases where temporary disablement benefit not having been claimed claim for permanent disablement is made on the basis thereof by the appropriate Regional Office at the instance of the disabled person or the employer or any recognised employees union:provided that such reference may be made by the appropriate Regional Office after the expiry of the period prescribed as aforesaid if it is satisfied that the applicant was prevented by sufficient cause from applying for the making of the reference in time:provided further that in the event of the claim for Temporary Disablement Benefit being rejected by the Corporation but afterwards granted by the Employees Insurance Court in respect of the injuries resulted in Permanent Disablement the limit of 12 months will apply from the date of the order of the Employees Insurance Court granting the claim of the insured person for Temporary Disablement Benefit. (b) by the Corporation. (I) at any time on the recommendation of an Insurance Medical Officer and (II) on its own initiative after the expiry of the twentyeight days from the first date on which the claimant was rendered incapable of work by the relevant employment injury. "73. Report of medical Board. The Medical Board shall after examining the disabled person send its decision on such form as may be specified by the Director General to the appropriate Regional Office. The disabled person shall be informed in writing of the decision of the Medical Board and the benefit if any to which the disabled person shall be entitled. ""76-A. Submission of claims for periodical payments of permanent disablement benefit. The disabled person shall be informed in writing of the decision of the Medical Board and the benefit if any to which the disabled person shall be entitled. ""76-A. Submission of claims for periodical payments of permanent disablement benefit. An insured person who has been declared to be permanent disabled by a Medical Board or by a Medical Appeal Tribunal or an Employees Insurance Court shall submit by post or otherwise to the appropriate Local Office a claim covering except in the case of a first payment a period of one or more complete calendar months in Form 25 for claiming permanent disablement benefit. ""76-B Computation of small periodical payments of permanent disablement benefit.- (1) An insured person whose permanent disablement has been assessed as final and who has been awarded permanent disablement benefit at a rate not exceeding Rs. 1. 50 per day may apply for commutation of the periodical payments of permanent disablement benefit into a lump sum:provided further that cases falling under clause (3) of this Regulation where commutation has been refused the insured person did not have average expectation of life shall not be reopened. (2) Where such an application is made within 6 months of the date en which he can opt for commutation hereafter called the date of possible action the periodical payments shall be commuted into a lump sum. (3) Where such an application is made after the expiry of 6 months from the date of possible option the periodical payments may be commuted into a lump sum if the Corporation is satisfied that the insured person has an average expectation of life for his age. For the purpose the insured person shall if so required by the appropriate office present himself for examination by such medical authority as the Director General may by general or special order specify. (4) For the purpose of this regulation the date of possible option shall mean- (i) in the case of a person who on the date on which the regulation comes into force is in receipt of permanent disablement benefit covered by sub- regulation (1) the date of coming into force of this regulation; (ii) in the case of any other insured person the date on which the assessment of permanent disablement covered by sub-regulation (1) is communicated to him by the appropriate Regional Office. (5) The amount of lump sum admissible under this regulation shall be determined by multiplying the daily rate of permanent disablement benefit by the figure indicated in column 2 of Schedule III to these regulations corresponding to the age on last birthday of the insured person on the date on which his application for commutation is received in the appropriate office and on and from the date periodical payments of permanent disablement benefit shall cease to be payable to him:provided that where no proof of age has been submitted as required by the appropriate office or if submitted has not been accepted as satisfactory by the appropriate office the corresponding age as aforesaid of the insured person shall be the age as estimated by the Medical Board on the date of examination adjusted by the period intervening between the date of examination by the Medical Board and the date on which the application for commutation was received in the appropriate office:provided further that the age so estimated by the Medical Board shall also operate against any proof of age that may be submitted after the time allowed for the purpose to the insured person by the appropriate office before reference of his case to the Medical Board. ( 49 ) IN the instant case it is not in dispute that the respondent who is an insured person suffers from permanent disablement as a result of employment injury his case was referred by the Corporation to the Medical Board for determination of disablement and the extent of loss of his earning capacity. As pointed out above sec. 54 deals with determination of question of disablement. Under clause (c) of sec. 54. the Medical Board had to determine whether the assessment of the proportion of the loss of earning capacity is provisional or final and in the case of provisional assessment under clause (d) of the said section it had further to determine as to the period for which such assessment shall hold good. Therefore sec. 54 does contemplate two kinds of assessments namely provisional assessment or final assessment. I am emphasising this aspect because it is relevant in the context of the language used in regulation 76-B which has been pressed into aid on behalf of the Corporation. Therefore sec. 54 does contemplate two kinds of assessments namely provisional assessment or final assessment. I am emphasising this aspect because it is relevant in the context of the language used in regulation 76-B which has been pressed into aid on behalf of the Corporation. Sec. 54-A (2) confers right on the insured person and the Corporation who is not satisfied with the decision of the Medical Board to appeal against its decision in the prescribed manner within prescribed time. Appeal can be preferred to either the Tribunal or the E. I. Court directly. If appeal is preferred before the Tribunal further appeal to the E. I. Court is provided. In other words decision of the Medical Board is subject to appeal to the E. I. Court directly or two appeals one initially to the Tribunal and then to the E. 1. Court. In the instant case the respondent had first approached the Tribunal by way of appeal and it was before the Tribunal that the Corporation objected to maintainability of the appeal. Sec. 62 which provides for commutation of cash benefit lays down that save as may be provided in the regulation no person shall be entitled to commute for sum any periodical payment admissible under the Act. In other words the insured person has no right to claim commutation of the cash benefit awarded to him except as provided in the regulation. Regulation 72 deals with reference to the Medical Board and regulation 73 deals with report of the Medical Board. It is not necessary to deal with these regulations in detail. It is however important to note that regulation 73 provides that decision of the Medical Board has to be given in a from to be specified by the Director General. It is stated before me that Form B. I. 3 to which reference is already made is the form prescribed by the Director General under regulation 73. Regulation 76-A provides for submission of claim for periodical payments of p. d. b. It lays down that an insured person who has been declared to be permanently disabled by a Medical Board or by a Tribunal or by the E. I. Court shall submit a claim claiming p. d. b. It is not in dispute that such claim can be made once the Medical Board gives a decision that the insured person is permanently disabled. In fact while communicating the decision of the Medical Board in form B. I. 3 alongwith letter in form ESlc-154 the claimant is informed that if he is dissatisfied with the decision of the Medical Board he may prefer an appeal as provided in sec. 54-A of the Act and that in the meanwhile he may claim the benefit at the rate determined by the Medical Board without prejudice to his right to claim benefit at a higher rate that may be awarded to him on appeal. Therefore It is not in dispute that claim under regulation 76 - A C15 be submitted without waiting for the decision of the appellate authority even if the insured person who is dissatisfied with the decision of the Medical Board wants to challenge the decision of the Medical Board by way of appeal as provided in sec. 54-A (2 ). This position is clear from the language of regulation 76-A also. In other words the claim for periodical payments for p. d. b. submitted by the insured person does not debar him from preferring appeal to the Tribunal or to the E. I. Court. While regulation 76-A provides for submission of claim for periodical payments of p. d. b. regulation 76-B provides for commutation of such periodical payment. This regulation 76-B amongst other things provides that an insured person whose disablement has been assessed as final and who has been awarded p. d. b. at a rate not exceeding Rs. 1. 50 per day may apply for commutation of the periodical payments of p. d. b. into a lump sum. Proviso to sub-regulation (1) is not relevant for our purpose and therefore I need not refer to it. Claim for commutation has to be made within six months of the date on which the insured person can opt for commutation as provided in sub-regulation (2 ). It would therefore appear that in order to claim benefit of commutation of periodical payments of p. d. b. under regulation 76-B following two conditions must be satisfied: (1) permanent disablement must have been assessed as final; and (ii) p. d. b. must have been awarded at a rate not exceeding Rs. 1. 50 per day. In other words the insured person who satisfies these two conditions would become eligible for commutation of the periodical payments; provided of course the application is made within the prescribed time. 1. 50 per day. In other words the insured person who satisfies these two conditions would become eligible for commutation of the periodical payments; provided of course the application is made within the prescribed time. The time prescribed for making application for commutation is six months from the date of possible option which is defined in sub-regulation (4) of regulation 76 Even after the expiry of the period of limitation of six months claim of the insured person could be entertained if the Corporation is satisfied that the insured person has an average expectation of life for his age. What is important to note is that regulation 76-B does not in terms lay down any condition that in case the insured person wants to challenge the decision of the Medical Board by way of appeal he shall not be entitled to such benefit until decision is rendered by the appellate authority namely the Tribunal or the E. I. Court. I will deal with the contention which is raised on behalf of the Corporation in this connection but at this stage I am only pointing out that the regulation in question itself does not make a specific provision as stated above. Sub-regulation (4) of regulation 76-B as pointed out above defines date of possible option and in so far as the matters under appeal are concerned only clause (ii) thereof is relevant. Under this clause (ii) the date of possible option is defined to mean the date on which assessment of permanent disablement covered by sub-regulation (1) is communicated to the insured person by the appropriate Regional Office. As point out above the decision of the Medical Board is communicated to the insured person by the appropriate Regional Office. As pointed out above the decision of the Medical Board is communicated to the insured person in form B. I. 3 specified by the Director General under regulation 73. It would therefore and in the period of limitation of six months would begin to rule from the date the communication in form B. I. 3 is received by the insured person. ( 50 ) THE argument which is advanced on behalf of the Corporation is that benefit of commutation under regulation 76-B could be claimed only when the claim is finally determined by the appellate authority under sec. 54-A of the Act. ( 50 ) THE argument which is advanced on behalf of the Corporation is that benefit of commutation under regulation 76-B could be claimed only when the claim is finally determined by the appellate authority under sec. 54-A of the Act. In support of this contention emphasis was laid on the words as final used in sub-regulation (1) of regulation 76-B and it was urged that permanent disablement could be said to have been assessed as final only when the appellate authority renders its decision. It was urged that in case appeal is preferred to the Tribunal the assessment would not become final unless and until the Tribunal gives its decision and the decision of the Tribunal is not subjected to further appeal and if subjected to appeal to E. I. Court the decision is rendered by the E I. Court. In other words according to the Corporation unless and until the final appellate authority on facts pronounces upon the claim made by the insured person assess. ment cannot be said to have become final within the meaning of regulation 76-B and unless it has so become final the insured person does not have a right to claim benefit of commutation of the periodical payment. Regulation 76-B (1) reproduced above is as the regulation stands today after its amendment which came into force on 17/12/1977 The words in terms of proviso to Regulation 73 which followed the words as final have been deleted by the aforesaid amendment which came into force on 17/12/1977 Sub-regulation before its amendment in December 1977 read as follows:" (1) An insured person whose permanent disablement has been assessed as final in terms of proviso to Regulation 73 and who has been awarded permanent disablement benefit of a rate not exceeding 50 Paise per day may apply for commutation of the periodical payments of permanent disablement benefit into a lump sum. "regulation 73 before its amendment in December 1977 read as follows:"73. Report of Medical Board. "regulation 73 before its amendment in December 1977 read as follows:"73. Report of Medical Board. The Medical Board shall after examining the disabled person submit its report to the appropriate regional office making recommendations as to- (i) whether the disablement should continue to be treated as temporary and if so the next date when the case should again be referred to the Medical Board; (ii) whether the disablement can be declared to be of a permanent nature and if so whether the extent of loss of earning capacity can be assessed provisionally or finally; (iii) the assessment of the proportion of the loss of earning capacity whether provisional or final; and if the employment injury sustained by the disabled person is caused by any occupational disease specified in Schedule II to the Workmens Compensation Act 1923 the Medical Board shall also state whether the disablement is due to the said disease: provided that an assessment of disablement due to an employment injury shall be treated as final unless the Medical Board specifically states to the contrary and records reasons therefor. All assessments which are not final may be referred to a Medical Board for review by the appropriate Regional Office at any time it may deem proper. The disabled person shall be informed in writing of the recommendations of the Medical Board the decision of the appropriate Regional Officer thereon and the benefit is any to which the disabled person shall be entitled. "it would thus be seen that under the proviso to the aforesaid regulation 73 the assessment of disablement due to employment injury was treated as final unless the Medical Board specifically stated to the contrary and recorded the reasons therefor. It was in that context that regulation 76-B (1) read as aforesaid before its amendment in Decem- ber 1977. Regulation 73 was substituted by new regulation 73 which is already reproduced above. It will be seen that regulation 73 which was inserted in December 1977 did not contain proviso which was there in the old regulation 73. New regulation 73 introduced in December 1977 is totally different from the old regulation 73. It was in view of the substitution of the old regulation 73 by new regulation 73 that amendment of regulation 76-B (1) as stated above became necessary. New regulation 73 introduced in December 1977 is totally different from the old regulation 73. It was in view of the substitution of the old regulation 73 by new regulation 73 that amendment of regulation 76-B (1) as stated above became necessary. Since there was no proviso as was found in the old regulation in the new regulation 73 reference to such proviso had to be deleted. However what is important to be borne in mind is the words as final have been retained.