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2005 DIGILAW 273 (GAU)

N. Gourakishwar v. State of Manipur

2005-03-31

M.B.K.SINGH

body2005
Heard Mr. S. Lakhikanta Singh, Advocate and Mr. N.Kotishwar, Advocate appearing on behalf of the petitioner as well as Mr. Th.Ibohal Singh,learned Addl.Government Advocate. The learned Addl.G.A. prays for time. However, this prayer is rejected in view of the fact that this matter has been lingering at the Motion Stage for the last many days. This is a Revision Petition which has been filed challenging the legality and propriety of a portion of the order passed by the learned CJM, Imphal on 16.02.2005 in connection an FIR case being FIR No 46(2)05 I.P.S. The said order was passed while dealing with a prayer for judicial remand made by the Investigating Officer(I.O.) of the case in respect of 5(five) accused persons who were also produced before the learned CJM after having kept in police custody for 4(four) days purportedly on the basis of allegations of their having been involved in collection of contribution amounting to Rs. 9.2 lakhs from 10(ten) Private Clinincs/Hospitals for payment to Underground elements. As per report of the I.O., purportedly passed on finding during investigation, the said amount was not collected for making payment Underground elements/organizations, but it was raised for the purpose of purchasing one M.R.I. Machine for the said Clinics/Hospitals. On finding that there was no ground for remanding the said accused persons to judicial custody, the learned CJM, Imphal ordered for releasing them on bail as per terms and conditions mentioned in the order and also for keeping the seized amount in a Locker of any Branch of the SBI until further orders. The revisionist is aggrieved that while dealing with the said prayer for judicial remand, the learned CJM passed the said portion unwarrantedly, without justification and without jurisdiction. The impugned portion of the order is as follows: “Before parting with the case, I would like state that such type of arrest shall not be made in the future. It shows lawlessness in the State. A high level enquiry shall be conducted to find out the circumstances leading to the present seizure of the huge amount of money and the arrest of the innocent persons.” According to the revisionist, while passing the impugned portion of the said order, the learned CJM, Imphal, overlooked or ignored the power of the police officer to arrest suspicious person/seize property suspected to have been involved in a crime and investigate about the commission of a cognizable offence. Further, according to the revisionist, consequent upon passing of the said portion of the said order, the Additional D.G.P.(L.O.& A.P)Manipur has issued an order on 17.2.2005 on behalf of the DGP Manipur, directing Mr. R.Baral, IPS, Inspector General of Police(L&O-I)Manipur to carry out an enquiry about the seizure of the said amount and the arrest of the said 5 accused persons in order to find out if the arrest and seizure were warranted or not and if there has been deliberate acts of omission and commission on the part of anyone which led to the observations made by the learned CJM, Imphal. On careful perusal of the said portion of the order and in the context of production of the said five accused persons, after having kept in police custody on the basis of allegations of their having been involved in collection of money for payment to Underground organizations, with a prayer of judicial remand but informing the learned CJM, Imphal at the same time to the effect that as per findings of the investigation, the seized money had not been raised or collected for payment to any Underground organization, one can understand the anxiety and anguish felt by the learned Magistrate about the question if the rights and liberties of the said five accused persons had not been duly respected by the concerned police officer or not. It is well settled that no arrest can be made because it is lawful for a police officer to do so. The existence of the power of arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police Lock-Up of a person can cause incalculable harm to the reputation and self- esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the Constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. In respect of the above said position of law one may refer to the decision of the Hon'ble Supreme Court in Joginder Kumar-Vs- State of U.P. & Ors. reported in(1994) Cril. Law Journal 1981. Keeping in view the above said well settled position of law in respect of the arrest and detention and having regards to the facts and circumstances under which the said five accused persons were produced from the police custody, apparently the learned CJM,Imphal was under the impression that the arrest of the said persons have been made without sufficient justification and as such the observation made by the learned CJM for not making such type of arrest in future was purportedly made with an object of preventing police from arresting a person arbitrarily and without sufficient legal justification. What is objectionable in the said observation is that, on one hand, the learned Magistrate was assuming that the said five accused persons had been arrested illegally but he was not taking any action in accordance with law against those who had arrested them illegally. The case was at the investigation stage and no final report was yet submitted. At that stage, in the facts and circumstances, if the learned CJM was not definite about the illegality of the arrest and seizure, he ought not have made any observation about not making that type of arrest in future. Further, the observation made by the learned CJM about the lawlessness in the State was also not necessary. His opinion about lawlessness or otherwise in the State was not required for dealing with the matter before him. So far, the direction of the learned CJM made in the impugned portion of the order for conducting a high level enquiry to find out the circumstances leading to the seizure of the said amount and arrest of the said five persons is concerned, there is no dispute that the learned CJM was not having jurisdiction to pass that type of direction under the law. It was not also necessary to make that type of observation to dispose of the matter before him. It was not also necessary to make that type of observation to dispose of the matter before him. In my opinion, said observation or direction made by the learned CJM, Imphal in the said portion of the order dated 16.2.2005 was not at all necessary for disposal of the matter before him at the relevant time and the said observation and direction are likely to have effect of interfering with the investigation of the case. It will be just and proper to expunge the impugned portion of the order. Accordingly, the impugned portion of the order is hereby expunged. This Revision is allowed. This decision will not, however, stand on the way of the concerned authority to make any enquiry on its own to ascertain if there has been misuse or abuse of the power of arrest, detention and seizure on the part of any police officer or not.