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1987 DIGILAW 863 (ALL)

Ashok Kumar Singh v. State Of U. P.

1987-09-01

D.S.BAJPAI, K.NATH

body1987
JUDGMENT K. Nath, J. 1. This petition u/Article 226 of the Constitution of India is for issue of a writ of habeas corpus to set the petitioner, Ashok Kumar Singh, at liberty who is an under-trial prisoner in a case Crime no. 78 of 1987, under sections 504/302 of the Indian Penal Code, Police Station Pisawan district Sitapur. 2. An FIR for the said offence appears to have been lodged against the petitioner on 9-6-1987 at about 8.30 A.M. at Police Station Pisawan, district Sitapur by one Raj Kumar. A police party led by S. I. Gajendra Pal Singh went to the house of the petitioner where he was arrested and his licensed gun was seized by the police. A recovery memo, annexure CA-2, was prepared by S. I. Gajendra Pal Singh. The petitioner under arrest along with the seized gun was taken to police station Pisawan the same day where he was put in the lock-up and an entry was made in the General Diary on 9-6-1987 by S. I. Gajendra Pal Singh, annexure CA-1. The short ground against the petitioner's continued detention is that on arrest the petitioner was not informed of the grounds of his arrest as required by Article 22 (1) of the Constitution of India or of the full particulars of the offence for which he was arrested as required by section 50 (1) of the Code of Criminal Procedure. The averment in this regard has been made in the affidavit and the petitioner's learned counsel, Sri Virendra Bhatia, refers to the General Diary entry aforesaid which only mentions, inter alia, that the petitioner had been arrested, his gun seized, recovery memo prepared and he was taken to the police station and locked-up there. 3. In the counter affidavit of Sri M. L. Khan, the Station Officer of Police Station Pisawan district Sitapur reliance has been placed upon the said General Diary entry as supplemented by the averments contained in the recovery memo, annexure CA-2. The learned Assistant Government Advocate also placed reliance upon the copy of the affidavit of S. I. Gajendra Pal Singh, annexure-3 to the writ petition, which was filed by S. I. Gajendra Pal Singh in the Court of Sessions. The substance of the recovery memo is that when the petitioner was arrested, 'the ground of his arrest was stated to him' (Giraftaari Ka Kaaran Bataya Gaya). The substance of the recovery memo is that when the petitioner was arrested, 'the ground of his arrest was stated to him' (Giraftaari Ka Kaaran Bataya Gaya). The learned counsel for the petitioner correctly relies upon a decision of a Division Bench of this Court in the case of Subhash Bhandari v. State of U. P., 1986 AWC 1049 where it was laid down that the expressions ' Giraftaari Ka Kaaran Bataya Gaya ' do not satisfy the requirements of Article 22 (1) of the Constitution of India read with the provision of section 50 (1) of the Code of Criminal Procedure which happens to be the procedure established by law within the meaning of Article 21 of the Constitution of India. The law laid down in that case is that the statement of grounds to the person arrested must contain such particulars as are similar to the particulars set out in a charge framed for the purposes of trial in a court of law in order to satisfy the requirements of ' full particulars of the offence ' u/Sec. 50 (1) of the Code of Criminal Procedure. 4. The learned Assistant Government Advocate then refers to the averments of S. I. Gajendra Pal Singh in his above mentioned affidavit filed in the court of Sessions Judge where he said that at the time of arrest the petitioner, Ashok Kumar was informed that he committed the murder of the uncle of Raj Kumar resident of village Baragawan on 9-6-1987 at 7.00 A.M. before the shop of Katori by firing at him and therefore he was arrested for committing an offence punishable under section 302 IPC. We do not find it possible to accept this statement made in the affidavit of S. I. Gajendra Pal Singh having regard to the fact that no such particulars are mentioned in the recovery memo, annexure CA-2 to counter affidavit, and indeed no mention whatsoever has been made in the General Diary entry, Annexure CA-1. Perhapsit is an afterthought of S. I. Gajendra Pal Singh and we cannot proceed on this statement. The case must proceed on the basis that the petitioner had not been informed of the grounds of his arrest at the time of his arrest in the sense which we have indicated above. Perhapsit is an afterthought of S. I. Gajendra Pal Singh and we cannot proceed on this statement. The case must proceed on the basis that the petitioner had not been informed of the grounds of his arrest at the time of his arrest in the sense which we have indicated above. The learned Assistant Government Advocate says that the charge-sheet of the offence has already been submitted in the court and therefore the previous illegality in the petitioner's detention, if any, stands cured and the petitioner is not entitled to a relief of release in this petition. The learned Assistant Government Advocate referred to the case of Vimal Kishore v. State of U P., AIR 1956 All. 56 . We notice that this decision is far from supporting his contention. The learned counsel for the petitioner has referred to a case Ram Chandra Munni v. Supdt. Central Jail Naini, 1982 LLJ 161 which will indicate that the subsequent order of remand cannot validate the initially invalid detention which is illegal on the ground of violation of the guarantee contained in Article 22 of the Constitution of India. 5. We should think that there are at least two clear classes of cases of arrest and detention from the point of view of the requirements of the law. The first class of the provisions is the one which is contained in part III of the Constitution of India based on fundamental rights, namely Arts. 21 and 22 (1). These are the constitutional guarantee which cannot be curtailed by any legislature and if the legislature does so, it would be invalid in view of Art. 13 of the Constitution of India. It will be noticed that the various constitutional guarantees contained in part III have in-built restrictive provisions, and the only restrictive provision over Article 22 (1) is to be found in clause (3) of the said Article which does not apply to the case of the petitioner. (This, of course, is apart from restrictions that may be made in respect of Armed Forces or Forces charged with maintenance of Public Order, vide Art. 33). It is axiomatic that what laws cannot do, the executive also cannot do. 6. (This, of course, is apart from restrictions that may be made in respect of Armed Forces or Forces charged with maintenance of Public Order, vide Art. 33). It is axiomatic that what laws cannot do, the executive also cannot do. 6. The second class of provisions consists of the procedural laws beginning from section 41 of the Code of Criminal Procedure including various provisions like sections 167, 209 and 309 of the Code of Criminal Procedure which deal with the arrest, detention and remand of a person. These provisions of law although made under the legislative powers conferred by various lists of Schedule 7 of the Constitution of India, can be examined in the light of the provisions of curability of procedural errors contained in Chapter XXXV of the Code of Criminal Procedure. The doctrine of curability of a detention by virtue of a subsequent valid order of remand despite a previous invalid order of remand can have support from this classification of laws, but it cannot be extended to the violation of the constitutional guarantees which are contained in Articles 21 and 22 (1) of the Constitution of India. We must reiterate that the procedural safeguard contained in section 50 (1) of the Code of Criminal Procedure does not belong to the second class of provisions but it belongs to the first class of provisions being a part of the procedure established by law as laid down by Article 21 particularised by Article 22 (1) of the Constitution of India. We are, therefore, clearly of the opinion that the detention of the petitioner in the circumstances and facts of the present case was illegal and void at the very inception and cannot be sustained despite the fact that the charge-sheet has been submitted to the court. Even so, this protection to the petitioner cannot disentitle the competent executive authority of the State to re-arrest the petitioner and deal with him in accordance with law. This Court has ruled so in the case of Vimal Kishore v. State of U. P. (supra), paragraph 35. The learned counsel for the petitioner says that the petitioner is prepared to give an undertaking to appear in the concerned criminal court. It goes without saying that the petitioner should appear in the concerned court, but we give no directions in this regard presently. 7. The learned counsel for the petitioner says that the petitioner is prepared to give an undertaking to appear in the concerned criminal court. It goes without saying that the petitioner should appear in the concerned court, but we give no directions in this regard presently. 7. The writ petition is allowed and the petitioner is directed to be released immediately unless wanted in some other case. It is clarified that this order does not prevent the re-arrest of the petitioner for the same offence in accordance with law. Petition allowed.