SONI NATVERLAL PRABHUDAS v. STATE — 1983 DIGILAW 24 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioner No. 1 Soni Natverlal Prabhudas is an elder brother of petitioner No. 2 Soni Jinabhai alias Hasmukhlal Prabhudas who has been added as petitioner No. 2 during the pendency of this application vide order dated 22-3-1982. The petitioner No. 2 had purchased allegedly in good faith a golden chain weighing 1 Tola and 10 annas for Rs. 2840. 00 (rupees two thousand eight hundred forty only) at his aforesaid shop at Viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village Panar Taluka Viramgam which is at a distance of about 10 Kms. from Viramgam. The petitioner No. 2 had no reason whatever to suspect the said property to be a stolen one at the time of the aforesaid purchase. It is alleged that petitioner No. 2 paid a reasonable market price for the said property as stated above. ( 2 ) THIS application was presented by the petitioner No. 1 on 19 while the petitioner No. 2 was in Police custody on account of the aforesaid remand order. It is submitted that the arrest of the petitioner No. 2 was not only illegal unconstitutional and without jurisdiction but the same was also mala fide. Hence this application was originally filed by the petitioner No. 1 to challenge the propriety legality constitutionality correctness and validity of the arrest of the petitioner No. 2 as well as the subsequent order of remand to the Police custody passed by the respondent No. 5. As pointed out earlier the petitioner No. 2 has been added as a party later by an amendment order dated 22-3-82 as by that time the respondent No. 5 had rejected the request of the investigating agency for further remand of accused No. 2 and as consequently accused No. 2 was released from the custody. ( 3 ) THE application is filed under Articles 226 and 227 of the Constitution of India for the enforcement of the fundamental rights under Articles 21 and 22 (1) of the Constitution of India and statutory right under sec. 50 (1) of the Criminal Procedure Code. It is filed on the basis of the following main contentions : (1) The respondents Nos. 3 and 4 have acted mala fide as the petitioner No. 2 refused to satisfy the demand for illegal gratification on Rs. 50 (1) of the Criminal Procedure Code. It is filed on the basis of the following main contentions : (1) The respondents Nos. 3 and 4 have acted mala fide as the petitioner No. 2 refused to satisfy the demand for illegal gratification on Rs. 5 0 made by the respondents Nos. 3 and 4 in the Police Station at Viramgam on 16/03/1982 (2) The petitioner No. 2 was arrested in contravention and deliberate disregard of the constitutional mandates as embodied in Article 21 and 22 (1) of the Constitution of India and sec 50 read with sec. 167 (4) of the Criminal Procedure Code Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 22 (1) says 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. Section 50 (1) of the Criminal Procedure Code enjoins that every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offences for which he is arrested or other grounds of such arrest. These provisions are enacted as a matter of abundant caution to safeguard the rights and liberty of the accused persons against whom ex parte material is collected during the police investigation and who is arrested on the strength of such a material so as to enable them to know at the initial stage as to why he is arrested and also to consult a legal practitioner of his choice. It is submitted that provision of sec. 50 Criminal Procedure Code 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 of the Constitution of India enabling the person arrested to move for Habeas Corpus to obtain his release. The section confers a valuable right and non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. It is further submitted that a citizens liberty cannot be curtailed except in accordance with the law. The section confers a valuable right and non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. It is further submitted that a citizens liberty cannot be curtailed except in accordance with the 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 face of such an affidavit the Police diary cannot be perused to verify the Police Officers claim of oral intimation of such particulars. Even if such oral communication was made whether full particulars were communicated not being known the arrest and detention of the person must be termed illegal. These submissions are made on the basis of the reported rulings of the High Court of Calcutta in the case of GOVIND PRASAD V. STATE OF WEST BENGAL REPORTED IN CRIMINAL LAW JOURNAL 1249 AND OF THE HIGH COURT OF GAUHATI IN THE CASE OF AJITKUMAR V. STATE OF ASSAM REPORTED IN 1966 CRIMINAL LAW JOURNAL 1303. (3) It is further submitted that in our country majority of population is absolutely illiterate and unaware of its fundamental and legal rights. It is therefore the duty of those who are exercising public power to be extra careful in seeing that no public power is abused or misused since all powers are intended to serve the ends of justice and not to defeat the same. (4) The impugned action of the respondents Nos. 2 3 and 4 is without jurisdiction inasmuch as the original complaint was filed at the Bavla Police Station and therefore the respondent Nos. 2 3 and 4 had no jurisdiction to carry out the investigation of the complaint filed at Bavlu Police Station and hence the search seizure and arrest are illegal. (5)THE petitioner No. 2 was a bona fide purchaser for value without notice and there was no material whatever with the Investigating Officer to connect the petitioner No. 2 with the offence alleged in the complaint filed at Bavla Police Station regarding theft of ornaments. Thus there was no reasonable ground whatever for the search seizure and arrest of the petitioner No. 2. (6) The order of remand passed by the respondent No. 5 at 1-30 p. m. on 17-3-1982 at Kadi is also illegal as the order does not comply with sec. 167 of the Criminal Procedure Code. Thus there was no reasonable ground whatever for the search seizure and arrest of the petitioner No. 2. (6) The order of remand passed by the respondent No. 5 at 1-30 p. m. on 17-3-1982 at Kadi is also illegal as the order does not comply with sec. 167 of the Criminal Procedure Code. The respondent No. 5 has not recorded convincing reasons for granting remand of petitioner No. 2 to Police. The reasons recorded by him are simply the semblance of reasons. Respondent No. 5 has not considered the specific grounds justifying exercise of powers under sec. 167 of the Criminal Procedure Code. The order is perfunctory and has resulted into prejudice to the petitioner No. 2 and miscarriage of justice. (7) The petitioners have challenge the search and seizure made by the respondents Nos. 2 3 and 4 as being illegal having been against the relevant provisions of the Criminal Procedure Code namely secs. 165 166 in regard to the search and secs. 94 165 and 166 in regard to seizure. (8) In the end petitioners have challenged the entire investigation carried out by the Police against petitioner No. 2 as having been illegal and in violation of the provisions for investigation made under secs. 154 to 173 of the Criminal Procedure Code. 22. The gravamen of Mr. Barots attack on the investigation was that the investigation is initiated against petitioner No. 2 and is carried out of mala fides. ( 4 ) (THE case of mala fide has been dealt with in detail by respondent No. 4 in his affidavit in reply.) ( 5 ) MR. Mehta further submitted that at the stage of investigation the question of mala fides may not be gone into. The matter is subjudice because a private complaint is filed against respondent No. 4. He further submitted that investigation is an independent agency and the Court would interfere only when there was gross abuse of power. An irregularity here or there during investigation would not necessarily imply mala fides on the part of the Investigating Officers. Mr. Mehta submitted that if the matter is considered in the light of the allegations made by the petitioners and replies given by responsible Police Officer in their respective affidavits-in-reply a question arises whether such a situation has arisen which would call for intervention by the High Court at the stage of investigation. Mr. Mehta submitted that if the matter is considered in the light of the allegations made by the petitioners and replies given by responsible Police Officer in their respective affidavits-in-reply a question arises whether such a situation has arisen which would call for intervention by the High Court at the stage of investigation. He further submitted by the time the petition is heard petitioner No. 2 is already released on bail and therefore are not the questions of illegal arrest and the: illegal remand order academic and cannot these questions be considered at the time of the trial of the petitioner No. 2 and the trial of respondent No. 4 in the private complaint ? If we decide these questions at this stage would not the judicial proceedings be prejudiced ? Mr. Metha submitted two authorities for my consideration and they are the case of MADHU LIMAYE AND OTHERS AIR 1969 SUPREME COURT 1014 and the case of STATE OF BIHAR AND ANOTHER V. J. A. C. SALDANNA AND OTHERS AIR 1980 SUPREME COURT 326. ( 6 ) THE Supreme Court in the case of MADHU LIMAYE AND OTHERS (SUPRA) has observed as under:-"we have been pressed to decide the question of mala fide which is the fourth contention of Madhu Limaye. Normally such matters are not gone into by this Court in these proceedings and can be more appropriately agitated in such other legal action as he may be advised to institute or take. " ( 7 ) D. A. Desai J. speaking for the Bench in the case of STATE OF BIHAR AND ANOTHER V. J. A. C. SALDANNA AND OTHERS (SUPRA) observed at page 337 as under:"there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. 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. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the effender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the Police and the Magistrate. Desai J. has quoted from a Privy Council case reported in (1944) 71 INDIAN APPEALS 203 AT PAGE 213 (KING EMPEROR V. KHWAJA NAZIR AHMED) as under:"in India as has been shown there is a statutory right on the part of the Police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would as their Lordships think be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function always of course subject to the right of the Court to intervene in an appropriate case when moved under sec. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. . . . . . "desai J. further observed as under:"the High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. " ( 8 ) THESE observations are a caveat in the present proceedings. It is hazardous to come to any conclusion on a serious question of the allegations of mala fides against the investigating officers in the circumstances of the present case outlined above only on the strength of affidavits. ( 9 ) THE next important allegation which is made by Mr. N. K. Barot is that respondents No. 2 to 4 I ave acted without jurisdiction. He submitted that considering the relevant provisions of the Criminal Procedure Code and particularly sec. ( 9 ) THE next important allegation which is made by Mr. N. K. Barot is that respondents No. 2 to 4 I ave acted without jurisdiction. He submitted that considering the relevant provisions of the Criminal Procedure Code and particularly sec. 156 (1) thereof respondent No. 4 could not have entered upon investigation and therefore whatever he did or caused to be done was without jurisdiction. If he was working under the instructions of his superior officer as alleged even then his superior officer could not have authorised him to undertake investigation of any case which was not within the jurisdiction of respondent No. 4. In order to appreciate the argument of Mr. N. K. Barot I shall reproduce sec. 156 of the Criminal Procedure Code which is as under:"156 (1) Any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. "mr. Barots argument was two fold. He submitted that this case would have been investigated only by P. S. I. Bavla Police Station in whose jurisdiction the offence was committed. Respondent No. 4 may have been an officer superior to P. S. I. Bavla Station. Nevertheless respondent No. 4 did not have jurisdiction under sec. 156 (1) of the Criminal Procedure Code to investigate the case in question. ( 10 ) ASSUMING that sec. 36 of the Criminal Procedure Code applied to the present case even then respondent No. 4 did not have territorial jurisdiction to investigate the case in question. ( 11 ) IN order to meet with this argument of Mr. Barot Mr. J. U. Mehta invited my attention to the provisions of sec. 36 of the Criminal Procedure Code read with sec. 155 (2) thereof. Sec. 36 of the Criminal Procedure Code reads as under:"36. Police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station. "mr. Mehta submitted that sec. 36 of the Criminal Procedure Code clearly meets with the first plank of Mr. Barots argument. "mr. Mehta submitted that sec. 36 of the Criminal Procedure Code clearly meets with the first plank of Mr. Barots argument. It is not in dispute that respondent No. 4 was a Police officer superior in rank to the officer in charge of Police Station at Bavla. Respondent No. 4 therefore it was submitted was completely justified in exercising the power which could have been exercised by P. S. I. Bavla Police Station and thus he had acted within his jurisdiction while investigating the case in question. In my opinion Mr. Mehtas submission is quite correct and sec. 36 protects respondent No. 4 in his undertaking the investigation of the case in question. ( 12 ) SO far as the second plank of Mr. Barots argument is concerned the provision made in sec. 156 (2) of the Criminal Procedure Code again protects respondent No. 4. Sec. 156 (2) of the Criminal Procedure Code reads as under:"156 (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigates. "section 156 (2) of the Criminal Procedure Code is a reply to Mr. N. K. Barots challenge to the territorial jurisdiction of respondent No. 4. I do not propose to examine this question at great length since the issue raised by Mr. Barot is squarely dealt with and decided by Brother S. B. Majmudar J. in LILADE SITADE PAVAIYA and OTHERS V. STATE and OTHERS REPORTED IN VOL. 23 (2) GUJARAT LAW REPORTER 734 A Young boy was enticed away by the accused to Baranpura in Baroda where eunuchs were staying. After some time the boy was taken to Kalol. There the other accused persons cut off the private part of the boy by a weapon like a small sword. After the complainant regained consciouness he was brought back to Baroda. The complainant alleged that the entire incident had happened because of his ignorance and minor age and now he was made to live in a form of a eunuch. The complaint was first filed at Chhotaudepur from which it was transferred to Karelibag Police Station Baroda where the officer in charge started investigation as the alleged offences were cognizable in nature. The petitioners accused Nos. The complaint was first filed at Chhotaudepur from which it was transferred to Karelibag Police Station Baroda where the officer in charge started investigation as the alleged offences were cognizable in nature. The petitioners accused Nos. 3 to 5 urged to the High Court that the Karelibag Police Station had no authority or jurisdiction whatsoever to investigate the alleged offence under sec. 156 (1) of the Criminal Procedure Code. It was submitted that the offence of forcible emasculation which at the highest may constitute an offence under sec. 326 read with sec. 506 and 114 of the Indian Penal Code was alleged to have been committed at Kalol. Therefore the investigation against the petitioners being carried on was contrary to law and therefore the petitioners were entitled to get their fundamental rights under Article 21 enforced by issuance of a proper writ against the investigating agency. It was held that prima facie the offence of emasculation alleged to have been committed in Kalol in Mehsana District was part and parcel of common design and are components of the same transaction and the castration of the concerned victim was done with a view to make him an eunuch who could be a useful addition to their class of professional beggars. The relevant averments in the complaint clearly indicated that various offences were alleged to have been committed by different concerned accused as part and parcel of a comprehensive one and the same transaction. It was held under the circumstances of the case that the Criminal Court at Baroda had ample jurisdiction to try the offences alleged against the concerned accused. In the course of the judgment Brother Majmudar J. observed as regards sub-sec. (2) of sec. 156 of the Criminal Procedure Code in the following terms :"sub-SEC. (2) of sec. 156 of the Criminal Procedure Code in terms lays down that no proceedings of Police officer in any such case can be called in question on the ground that such officer was not empowered under this sub-section to investigate. (2) of sec. 156 of the Criminal Procedure Code in the following terms :"sub-SEC. (2) of sec. 156 of the Criminal Procedure Code in terms lays down that no proceedings of Police officer in any such case can be called in question on the ground that such officer was not empowered under this sub-section to investigate. The legislature has used wider word Police officer meaning thereby that immunity is sought to be often to the investigating proceeding initiated by any police officer which in its turn would include even an officer in charge of the police station and this immunity which states that such investigation shall not be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. The net result therefore is that even assuming that a police officer in charge of a police station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively an officer other than the officer in charge of the police station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said police station in either ease sec. 156 (2) immunises this investigation against any possi ble attack on the ground of absence of power with the concerned investigating officer. "he further observed as under :"if the legislature in its wisdoms has insulated inquiries and trials before the criminal courts against the attacks on the ground of absence of territorial jurisdiction save and except in a given contingency where failure of justice and material prejudice are demonstrated. it would be too much to hold that at prior stage of investigation a police officer who is investigating into the offence which does not fall within his territorial jurisdiction would be required to be totally prohibited from proceeding with investigation on the ground that some of the offences into which he is investigating fall outside the ambit of his local jurisdiction. "brother Majmudar J. has thoroughly scrutinized the question of applicability of sec. 156 (2) of the Criminal Procedure Code and I do not want to add to my judgment by travelling on the same ground. Suffice it to say that I am in agreement with the view taken by him. ( 13 ) THUS sec. 36 and sec. 156 (2) of the Criminal Procedure Code meet with Mr. 156 (2) of the Criminal Procedure Code and I do not want to add to my judgment by travelling on the same ground. Suffice it to say that I am in agreement with the view taken by him. ( 13 ) THUS sec. 36 and sec. 156 (2) of the Criminal Procedure Code meet with Mr. Barots challenge that respondent No. 4 has acted without jurisdiction. ( 14 ) MR. Barot also assailed the jurisdiction of respondent No. 2 and respondent No. 3 in assisting respondent No. 4 in carrying out the investigation against petitioner No. 2. This challenge of his is met with by the State by resorting to sec. 64 of the Bombay Police Act which defines duties of a police officer. "64 It shall be the duty of every police Officer: (e) to aid another Police officer when called on by him or in case of need in the discharge of his duty in such ways as would be lawful and reasonable on the part of the officer aided. "in this connection the affidavit of respondent NO. 4 may again be perused wherein respondent NO. 4 has stated as under :"i say that having received the information about the theft committed in this case my superior instructed me to make a thorough is investigation of this case with the help of respondent No. 3. I therefore further investigated into the matter and could trace the accused in the present case with the help of the respondents Nos. 2 and 3. "respondent No. 2 has stated in his affidavit-in-reply as under :"i say that I assisted in the investigation as per the demand of the respondent No. 4 and I only assisted him in the investigation. I have done nothing more than that. "respondent NO. 3 has stated in his affidavit-in-reply as under :"i say that I assisted respondent so. 4 in carrying out the investigation as per the order of my superior. I say that I remained with respondent No. 4 during this investigation. "in view of this statutory provision of the Bombay Police Act it cannot be said that what respondent Nos. 2 and 3 did in the course of the investigation was beyond their jurisdiction. On the contrary they were duty bound to do what they did under the circumstances of the case. Mr. Barots challenge therefore on the ground of jurisdiction of respondents Nos. 2 and 3 did in the course of the investigation was beyond their jurisdiction. On the contrary they were duty bound to do what they did under the circumstances of the case. Mr. Barots challenge therefore on the ground of jurisdiction of respondents Nos. 2 3 and 4 to investigate the case in question must fail. ( 15 ) THE last argument which I must now consider requires special notice. Mr. Barot submitted that while respondent No. 4 arrested petitioner No. 2 petitioner No. 2 was not supplied full particulars of the offence for which he was arrested or other grounds for such arrest. Mr. Barot submitted that the arrest of petitioner No. 2 is in violation of Article 21 Article 22 of the Constitution of India and sec. 50 (1) of the Criminal Procedure Code. Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty except according to Procedure established by law. Article 22 says 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. Section 50 (1) of the Criminal Procedure Code says that 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. ( 16 ) MR. Barot submitted that the term grounds for arrest has repeatedly been interpreted by the Supreme Court of India as meaning all relevant facts and statements and evidence collected during the course of investigation justifying the arrest. It is stated at paragraph 12 of the petition that the petitioners do not know even till date (that is to say till the filing of the petition and its amendment later) as to why the petitioner No. 2 was arrested and for which offence he has been arrested and on the strength of which material he has been arrested by the Police. I may interrupt at this stage to state that this statement of the petitioners does not appear to be correct in the light of the affidavit of respondent No. 4. ( 17 ) MR. I may interrupt at this stage to state that this statement of the petitioners does not appear to be correct in the light of the affidavit of respondent No. 4. ( 17 ) MR. Barot has heavily relied upon the two reported cases namely GOVIND PRASAD V. THE STATE OF WEST BENGAL 1975 CRIMINAL LAW JOURNAL 1249 AND AJITKUMAR V. THE STATE OF ASSAM 1976 CRIMINAL LAW JOURNAL 1303 ( 18 ) MR. Barot has relied upon the following observation from the case of GOVIND PRASAD V. THE STATE OF WEST BENGAL (SUPRA):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. The section confers a valuable right and a non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. " ( 19 ) MR. Barot relied upon the following passage from the case of AJITKUMAR V. THE STATE OF ASSAM (SUPRA) The section 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 face of such affidavit the police diary cannot be perused to verify the police officers claim of oral intimation of such particulars. Even if such oral communication was made whether full particulars were communicated not being known the arrest and detention of the person is illegal. ( 20 ) I shall first consider the observation cited by Mr. Barot from the case of GOVIND PRASAD V. THE STATE OF WEST BENGAL (SUPRA) I with respect agree with the proposition cited by Mr. Barot from headnote (C) of the same ruling. In order however to understand and appreciate its impact on the present case it is necessary that the facts of the reported ruling are considered. On a complaint lodged by one Sat Paul Kanwar described as a partner of the Vardhman General and Spinning Mills Ltd. at P. S. Sadar Ludhiana Ludhiana P. S. Case No. 620 dated 15-12-1974 was started under secs. 406/408/468/471 of the Indian Penal Code. On a complaint lodged by one Sat Paul Kanwar described as a partner of the Vardhman General and Spinning Mills Ltd. at P. S. Sadar Ludhiana Ludhiana P. S. Case No. 620 dated 15-12-1974 was started under secs. 406/408/468/471 of the Indian Penal Code. In course of the investigation that followed the accused petitioner who is stated to be a businessman living at 132/1 Mahatma Gandhi Road Calcutta was arrested on the 20/03/1975 by the Ludhiana Police with the assistance of the Police of the Jorasanko Police Station in Calcutta and was produced on the same day before the learned Additional Chief Metropolitan Magistrate Calcutta. On an application for bail moved on behalf of the accused-petitioner Sri N. G. Choudhury Additional Chief Metropolitan Magistrate Calcutta by his order dated the 20/03/1975 rejected the prayer for bail fat this stage and allowed the officer concerned coming from Ludhiana to take the accused away for being produced at the Ludhiana Court and to report compliance to the Calcutta Court by 8-4-1975. This was the impugned order which formed the subject-matter of the application for bail. An argument was advanced inter alia on behalf of the petitioner relating to a non-consideration on the part of the learned Additional Chief Metropolitan Magistrate Calcutta of a non-conformance to sec. 50 of the New Code of Criminal Procedure Code (Act 2 of 1974 ). It was in that context that it was observed that sec. 50 of the Code of Criminal Procedure is a new one and that its provisions are material and cannot be overlooked. It was submitted that full particulars of the offences as enjoined under the new provisions were not communicated to the accused-petitioner when he was arrested without warrant in Calcutta. N. C. Talukdar J. speaking for the Bench observed that the section confers a valuable right and a non-conformance to its mandatory provision is a non-conformance to the procedure established by law. What is however to be observed is that the full particulars of the offences were not given to the petitioner-accused. In fact from the facts which are given at paragraph 2 of the reported case it appears that no particular of the offences for which the petitioner was arrested was supplied to him. What is however to be observed is that the full particulars of the offences were not given to the petitioner-accused. In fact from the facts which are given at paragraph 2 of the reported case it appears that no particular of the offences for which the petitioner was arrested was supplied to him. It is to be noted that the incorporation of this provision 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. Mr. Barots main contention was that the officer concerned should have not only supplied the full particulars of the offence to the petitioner no. 2 but that they should have been in writing along with the copies of the relevant documents. Mr. Barots submission was that sec. 50 (1) of the Criminal Procedure Code is to be read not only in the light of Article 22 but Article 22 (5) of the Constitution of India also. Article 22 (5 requires that when any persons 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 So far as sec. 50 (1) of the Criminal Procedure Code is concerned it requires every Police officer or other person arresting any person without warrant to forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Mr. Barot submitted that although it is not stated in the section that full particulars of the offence should be supplied in writing that would be the meaning which must be deduced from the requirement of communicating the full particulars of the offence to the accused. While the reported case indeed emphasises the mandatory character of the requirement under Sec. 50 (1) of the Criminal Procedure Code and holds that non-compliance with this provision amounts to non-conformance to the procedure established by law it nowhere lays down that the requirement of sec. 50 is para materia with the requirement under Article 22 (5) of the Constitution of India. 50 is para materia with the requirement under Article 22 (5) of the Constitution of India. On the contrary it is expressly observed at paragraph 9 of the judgment that provision of sec. 50 (1) of the Criminal Procedure Code brings the law in conformity he the provisions of Article 22 (1) of the Constitution of India. The requirement of Article 22 of the Constitution of India is that a person who is arrested shall not be detained in custody without being informed as soon as may be of the grounds for such arrest. Article 22 (1) and Article 22 (5) of the Constitution of India are differently worded and the requirements of both are different. It is difficult to agree with Mr. Barot that sec. 50 (1) of the Criminal Procedure Code must be interpreted so far as its requirements are concerned in the light of Article 22 (5) of the Constitution of India that it should not be restrained in its demand of compliance with Article 22 (1) of the Constitution of India the authority considered above does not support this view of Mr. Barot. . ( 21 ) I may now refer to the second quotation cited by Mr. Barot from the case of AJITKUMAR V. STATE OF ASSAM (SUPRA ). The quotation is reproduced above. I may say that the quotation is lifted and cited here out of the context in the fact situation of the present case. We may see how the facts of the reported case are materially different from those of the present case. The petitioner was the Ex-president of the Assam College Teachers Association President of the Assam Political Science of the Handique Girls College Gauhati. There was some sort of turmoil with regard to the holding of the Pre-University examinations of the Gauhati and the Dibrugarh Universities in June 1975 and in that connection it is stated by the petitioner that the police indiscriminately arrested hundreds of students. The petitioner while he was relaxing at his house after his meal the Officer-in-Charge of the Gauhati Police Station accompanied by some Police Constables came to his house and requested him to accompany them to the Thana on the plea that he was sent for by the Superintendent of Police Kamrup. The petitioner while he was relaxing at his house after his meal the Officer-in-Charge of the Gauhati Police Station accompanied by some Police Constables came to his house and requested him to accompany them to the Thana on the plea that he was sent for by the Superintendent of Police Kamrup. The petitioner refused to comply with the request on the ground that at that hour of the night he was not willing to go to the Thana and wanted to know of the Police Officers if he was under order of arrest and they came to arrest him and the petitioner demanded the warrant of arrest if any. The Police Officers informed him 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 to a police vehicle parked nearby and then to the Thana. At the Thana he found the Superintendent of Police talking with a gentleman in one room and when the petitioner entered the room the Superintendent of Police requested the petitioner to sit in a nearby room Accordingly he was sitting in that room but the Superintendent of Police left the Thana After some time the Police officers left their posts. Thereafter he was requested by some Constables to go to another room and no action was taken with regard to him he was he great predicament and had to pass the night sitting till next morning. On the following day in the morning he was visited by some friends and at about 1 p. m. the petitioner was brought to the Prosecuting Inspectors once at the Deputy Commissioners Court at Gauhati where he was kept confined the 5. p. m Latter on he applied for bail which was granted. The petitioner applied under sec 482 of the Criminal Procedure Code 1973 He did not deny that the Police owner did of have the power to arrest an accused if he is suspected of a cognizable offence but his submission was that in that case the accused is entitled to communication of the full particulars of the Officer under sec. 50 of he Criminal Procedure Code and in that case this was not done. 50 of he Criminal Procedure Code and in that case this was not done. In his affidavit he specifically stated that communication of particulars of the offence has not been made to him inspite of the orders of the Chief Judicial Magistrate to do so. This allegation was or countered either by the State of Assam respondent No. 1 or the Officer-in-Charge of the Thana (respondent No 3) by any In this situation Baharul Islam J. (as he then was) observed as under:-"sri C. R. De the learned counsel appear on behalf of the State submits that the police diary in his possession shows the particulars of the offence were communicated to the petitioner orally. We are unable to peruse the police diary in the face of the affidavit filed by the petitioner. There was no reason as to why respondent No. 3 did not come forward to file a counter affidavit denying he petitioners allegation. The provision of sec so is mandatory and must be strictly complied with A citizens liberty cannot he curtailed except in accordance was to Even is any communication about the offence was orally made by respondent No. 3 to the petitioner we do not know what kind of communication was made whether the communication of the full particulars or mere section of the once was told to the petitioner In the circumstances we hold that the arrest and detention of the petitioner by respondent No. 3 was in violation of sec. 50 Cr. P. C. They are illegal and consequently the P. R. Bond that had to be executed by the petitioner was also a nullity. " In the result we cancel the P R. bond executed by the petitioner and he is freed from it. (Underline supplied ). " ( 22 ) MR. J. U. Metha the learned Public Prosecutor rightly submitted that so far as the concluding observation of the judgment is concerned it helps the prosecution rather than the petitioners. It is necessary that those observations are also cited here. Baharul Islam J. concluded as under:"there was also a prayer by the petitioner for quashing the case. But this is not the stage at which the case can be quashed. It is necessary that those observations are also cited here. Baharul Islam J. concluded as under:"there was also a prayer by the petitioner for quashing the case. But this is not the stage at which the case can be quashed. It is possible that is there be no evidence against Hat petitioner he case may end in a final report or if there be a charge-sheet unwarranted by materials the petitioner can approach an appropriate Court at the appropriate time for quashing the case. " ( 23 ) SO far as the present facts are concerned respondent No. 4 has filed a detailed affidavit the contents of which we have seen above. The respondent No. 4 has elaborately stated the facts leading to the arrest of petitioner No. 2 and as to how he was pointed out by the accused of the original case under investigation as the person to whom he had sold the stolen ornaments. Having narrated these facts in details respondent No. 4 has stated I say that the petitioner No. 1 was given the information in presence of the petitioner No. 2 about his arrest and the petitioner No. 2 was also examined and was given the reasons for his arrest. So it cannot be said that respondent No. 4 has not stated on affidavit the facts which would counter petitioners affidavit the wherein the allegation of non-compliance with sec. 50 (1) of the Criminal Procedure Code are averred. It is pertinent to observe that we do not find any observation in this case also that the compliance with sec. 50 (1) of the Criminal Procedure Code should be in writing. ( 24 ) MR. Barots main argument in this connection was that the compliance with sec. 50 (1) of the Criminal Procedure Code should be interpreted not only in the light of Article 22 (1) of the Constitution of India but also in the light of Article 22 (5) of the Constitution of India Mr. Barot cited several authorities founded upon Article 22 (5) of the Constitution of India to convince me that they had application while interpreting sec. 5c (1) of the Criminal Procedure Code and therefore in compliance with sec. Barot cited several authorities founded upon Article 22 (5) of the Constitution of India to convince me that they had application while interpreting sec. 5c (1) of the Criminal Procedure Code and therefore in compliance with sec. 50 (1) of the Criminal procedure Code the Prosecution ought to have supplied to petitioner No. 2 full particulars of the offence in writing along with the copies of the documents on the contents of which the prosecution relied. Mr. Barot could show no authority in support of his argument and he candidly admitted that such an interpretaion of sec. 50 (1) of the Criminal Procedure Code was sought by him without the support of any authority. It may be reiterated here that the authorities cited by Mr. Barot and discussed by me earlier namely the case of GOVIND PRASAD V. STATE OF WEST BENGAL (SUPRA) and the case of AJITKUMAR V. STATE OF ASSAM (SUPRA) do not in any way support this argument of Mr. Barot. Mr. Barot has cited several authorities on each point of submission on this aspect. He cited authorities to explain the words forthwith grounds communication of information opportunity of representation. He submitted that the grounds means the same thing in Article 22 (1) and Article 22 (5) of the Constitution of India meaning entire statement of facts documents and other materials relied upon by detaining authority for passing detention order. He submitted that documents are an integral part of grounds. ( 25 ) AS against these arguments of Mr. Barot Mr. Mehta submitted that the facts and circumstances leading to the arrest of petitioner No. 2 and the affidavit-in-reply filed by respondent No. 4 showed that the petitioner No. 2 was given the reasons for his arrest and also all the documents namely the statement of the accused Panchnama recorded in his presence and all that transpired leading to the arrest of petitioner No. 2 occurred in his own presence. The provisions of Article 22 (1) of the Constitution of India and sec. 50 (1) of the Criminal Procedure Code were fully complied with. Mr. Mehta submitted that the compliance or non-compliance with the provisions of Article 22 of the Constitution of India and sec. 50 (1) of the Criminal Procedure Code depends upon the facts and circumstances of each case. 50 (1) of the Criminal Procedure Code were fully complied with. Mr. Mehta submitted that the compliance or non-compliance with the provisions of Article 22 of the Constitution of India and sec. 50 (1) of the Criminal Procedure Code depends upon the facts and circumstances of each case. In the present case there was full compliance with Article 22 (1) of the Constitution of India and sec. 50 (1) of the Criminal Procedure Code. Grounds means the reasons and the reasons were given for his arrest. The Investigating Officers were led by the accused Babalsang Gobarsang to the shop of the present petitioner No. 2 and Babalsang pointed out petitioner No. 2 at his own shop. Respondent No. 4 had interrogated petitioner No. 2 at his shop and petitioner No. 2 had produced Rani which was melted from the stolen gold ornaments while he did not produce other ornaments which were allegedly sold to him by accused Babalsang. Petitioner No. 2 had also produced the bill book which has been commented above. After further interrogation of petitioner No. 2 by respondent No. 4 the shop and the house of petitioner No. 2 were searched for stolen ornaments. These were the circumstances of which the petitioner No. 2 was clearly aware. Even so respondent No. 4 has stated that he had given the reasons of petitioner No. 2s arrest to petitioner No. 2. Mr. Mehta submitted can it be said by any stretch of imagination that petitioner N o. 2 was not communicated the full particulars of the offence for which he was arrested ? Mr. Mehta submitted that petitioner No. 2 was communicated everything necessary at the earliest opportunity to enable him to know exactly as to what the accusation against him was so that he could exercise his right of consulting a legal practitioner of his choice. In fact petitioner No. 2 did consult his advocate who argued the application filed by the prosecution for remand and at no stage was any grievance made before the learned Magistrate about non-compliance with sec. 50 (i) of the Criminal Procedure Code by the prosecution. Petitioner No. 2 was produced before the learned Judicial Magistrate First Class Kadi within 24 hours from his arrest. The report was submitted to him and the advocate for petitioner No. 2 vehemently argued before the Court why police remand should not be given. 50 (i) of the Criminal Procedure Code by the prosecution. Petitioner No. 2 was produced before the learned Judicial Magistrate First Class Kadi within 24 hours from his arrest. The report was submitted to him and the advocate for petitioner No. 2 vehemently argued before the Court why police remand should not be given. Thus petitioner No. 2 had full information and had instructed his lawyer about the full particulars of the offence for which he was arrested. Otherwise the Advocate for the petitioner No. 2 would certainly have made a grievance the petitioner No. 2 did not know why he was arrested or detained. Mr. Mehta submitted can it be said under these circumstances that petitioner No. 2 was not communicated or informed of the reasons for his arrest or the particulars of the offence for which he was arrested ? Quoting from the case of PRANAB CHATTERJEE V. STATE OF BIHAR AND ANOTHER in Writ Petition No. 326 of 1970 decided by the Supreme Court on 13-10-1970 (1970 (3) Supreme Court Cases 926 Mr. Mehta contended that in that case the contention of the arrested petitioner was that he was never informed of the grounds for his arrest and that he was never produced before the Magistrate after his arrest. The Supreme Court after discuasing the facts and circumstances of that case held; The circumstances under which the petitioner was arrested along with others clearly establish that the petitioner knew the nature of the alleged offence for which he was arrested. ( 26 ) MR. Mehta also argued citing the case of MARKENDEY AND OTHERS V. STATE AND ANOTHER. 1976 ALLAHABAD LAW JOURNAL 88 that the Article 22 (1) of the Constitution of India will come into play only when a person who was arrested was being detained in custody. If the petitioner was granted bail it cannot be said that he was being detained in the custody and therefore Article 22 (1) of the Constitution of India cannot apply. Mr. Mehta also referred to the reported cases of Calcutta High Court and Gauhati High Court discussed by me above and submitted that in neither of these cases it was laid down that the particulars of the offence or grounds of arrest should be communicated to the person arrested in writing. The only requirement of Article 22 (1) of the Constitution of India and see. The only requirement of Article 22 (1) of the Constitution of India and see. 50 (1) of the Criminal Procedure Code was that the person arrested must know the particulars and the reasons for his arrest as to why he is being arrested. The petitioner who is arrested must be informed of the particulars about the offence for which he is arrested and each case depends upon its own facts. ( 27 ) I might say at this stage that 1 accept the arguments of the learned Public Prosecutor Mr. Metha 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 Criminal Procedure Code that the communication of the full particulars of the offence for which the accused is arrested or other grounds for such arrest should necessarily be conveyed to the writing. I also agree with Mr. Mehtas submission that the requirements of Article 22 (1) and Article 22 (5) on the Constitution of India are laid on relation to different contingencies. Article 22 (4) of the Constitution of India provides that for law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board constituted accordance with the recommendation of the Chief Justice of the appropriate High Court has reported before the expiration of three months that there is in its opinion sufficient cause for such detention. So far as the reason arrested under preventive detention is concerned he is not required to be produced before a Magistrate within the period of 24 hours of such arrest. In case of a person who is arrested or detained under any law providing for preventive detention clauses (1) and (2) of Article 22 of the Constitution of India will not apply. In case of a person who is arrested under a law other than the law providing for preventive detention he is required to be produced before the Magistrate within the period of 2t hours of such arrest and such arrested person cannot be detained in custody beyond the said period without the authority of such judicial authority. In case of a person who is arrested under a law other than the law providing for preventive detention he is required to be produced before the Magistrate within the period of 2t hours of such arrest and such arrested person cannot be detained in custody beyond the said period without the authority of such judicial authority. Therefore so far as detention other than preventive detention is concerned the provisions of Article 22 (1) and (2) of the Constitution of India will apply and so far as preventive detention is concerned the remaining provisions of Article 22 of the Constitution of India will apply. All those cases in which the Supreme Court has interpreted clause (5) of Article 22 of the Constitution of India in relation to preventive detention will not apply in cases of arrest or detention under law other than the law of preventive detention. ( 28 ) IN this view of the matter I cannot accept Mr. Barots last argument. ( 29 ) IN the result the present proceedings fail as indicated above. The petition is accordingly dismissed and the rule is discharged. Petition dismissed. .