Once we recognize that detention beyond 24 hours is an offence punishable under Section 342, I.P.C., it would follow that when information is placed before a Magistrate that such an offence is, or is being committed, he can order the officer in charge of a police station to investigate the same. Section 342 is a cognizable offence. Where a complaint is made against an officer in charge of a police station himself, the Magistrate must be held to have the power to enquire into the allegation by himself and then pass appropriate orders. Similarly, Section 190 of Cr.P.C. (Clause (c) of Sub-section (1)) empowers a Magistrate to take cognizance of any offence upon information received from any person other than a police officer. As stated earlier, Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence. Magistrate can take notice of an allegation disclosing commission of a crime with a view to set the law in motion to bring the offender to book. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly, if the police does not act according to law. Before he takes cognizance of the offence, it should be open to the Magistrate to verify whether the information received by him is true or not. Such a power is again implicit in the very power to take cognizance, and the procedure indicated by us above is a procedure for verification. We are thus of the opinion that the provisions of the Code of Criminal Procedure, and in particular Sub-section (1) of Section 190, as also Sub-section (3) of Section 156 do warrant and imply the above procedure.
14. The procedure indicated by us hereinbefore does not, and cannot be an alternative or a substitute for the remedy of Habeas Corpus available to every citizen of this country under Article 226 of the Constitution of India, besides, of course, those under Article 32. This is only an additional remedy which is open to a person to adopt, if he so chooses.
Kerala High Court
Poovan vs The Sub-Inspector Of Police And ... on 9 February, 1993
Equivalent citations: 1993 CriLJ 2183
1. Petitioner is the father of Babukuttan. He has filed this petition praying for the issuance of a writ of habeas corpus directing the respondents, Sub-Inspector of Police, Aroor, 1st respondent, and the Director General of Police, Kerala, 2nd respondent, to produce Babukuttan before this Court and to set him at liberty as also for ordering an impartial enquiry into the illegal arrest and detention of Babukuttan.
2. Material averments made by the petitioner in this petition are to the following effect.--
Sub-Inspector of Police, Aroor came to his house at 1.30 p.m. on 22-1-1993 and took Babukuttan into custody and locked him up in the Aroor Police Station. Large number of persons witnessed the arrest. Taluk Secretary of Kerala Pulaya Maha Sabha met the 1st respondent on 25-1-1993 and requested him to release Babukuttan who was in the lock up, on bail. 1st respondent did not pay any heed to that. On 26-1-1993 Sri Sadanandan, local Secretary of Revolutionary Socialist Party met 1st respondent and requested for the release of Babukuttan on bail. Though he could see Babukuttan in the lock up, 1st respondent did not release him. Same day Sri C. K. Abdulkhader, a member of Panchayat, went to the Police Station and offered sureties for the release of Babukuttan on bail. This individual had also seen Babukuttan inside the lock up. 1st respondent declined to release Babukuttan. According to the petitioner, 1st respondent kept Babukuttan in illegal custody at the instance of the Peeling Owners' Association on the basis of some alleged missing of Shrimp meat from peeling shed. It is alleged that Sri Abdul Gafoor, the Secretary of the Peeling Owners' Association is a close associate of Kerala Pradesh Congress Committee (I) President and is behind the illegal detention of Babukuttan. Detention of Babukuttan is without the sanction of law. Hence this petition.
3. This petition was filed on 1-2-1993. On the same day learned Government Pleader was directed to get instructions from respondents. When the case was called on 3-2-1993, learned Government Pleader made available to Court the statement of facts received by him from 1st respondent. It is stated therein that on 1-2-1993 one case was registered as Crime 22 of 1993 of his police station for offences under Section 379 stating that Babukuttan and two others are the suspects. Investigation revealed that Babukuttan is the real culprit and subsequently he was arrested at about 4 a.m. on 1-2-1993 from Eramalloor. He was produced before Judicial First Class Magistrate, Court II, Cherthala with remand report. While he was produced before the Magistrate he did not make any complaint against the police and the Magistrate remanded him to Sub-Jail, Alappuzha till 16-2-1993. First respondent has denied all allegations made by the petitioner in this petition.
4. From the records now before court, it is seen that Babukuttan was arrested in Crime 22 of 1993 of Aroor Police Station on the date on which this original petition was filed in court and he has been remanded by the Magistrate to the Sub-Jail at Alapuzha on 2-2-1993. The detention of Babukuttan from 2-2-1993 being under orders of Magistrate, he cannot be released. So the prayer made by the petitioner cannot be granted.
5. But before parting with this case, we would like to highlight certain distressing circumstances. This Court has been coming across many a petition for the issue of writ of habeas corpus with the complaint that certain person has been arrested by police on a particular date and that though a number of days have passed, he has not been produced before any Court nor released. On receiving notice from this Court on such petition, counter-affidavit is being filed stating that the person was not arrested on the date alleged, but on a later date, usually on the date of filing the petition for writ of habeas corpus, that he was produced before the Magistrate within twenty-four hours and the Magistrate has remanded him to judicial custody. On such counter being filed, the writ petition is disposed of saying that no further order is necessary, since the detention is not illegal. In some cases where the arrest is denied and petitioner disputes this, this Court directs enquiry through Subordinate Court, for this Court to pass final orders.
6. It cannot be said that the complaints made in all such cases are necessarily false; some of them may be, but at least some of them must be true. As P. N. Bhagwati, J. (as he then was) said in his article "Human Rights in the Criminal Justice System" (Published in Indian Bar Review, Vol. III, 1985 page 316, at p. 320) "cases are not unknown where persons are arrested by the police but no entry of arrest is made in the register, and it is only when the police decides to produce the person arrested before the Magistrate that they make an entry of arrest in the register, thus creating a record showing that they have complied with the requirement of production within twenty-four hours". The question that is agitating us is, whether in all such cases, is the writ of habeas corpus the only remedy?
7. Article 21 and Clauses (1) and (2) of Article 22 of the Constitution are as follows : --
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
22. (1) 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.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magisrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Article 21, and Clauses (1) and (2) of Article 22 go together, and constitute parts of one shceme. The principle behind Clauses (1) and (2) of Article 22 was stated by the Supreme Court in Re : Madhu Limaye, AIR 1969 SC 1014 : (1969 Cri LJ 1440) is in the following words (Para 11) : --
Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of law prevails. For example, the 6th Amendment to the Constitution of the United States of America contains similar provisions and so does Article XXXIV of the Japanese Constitution of 1946. In England whenever an arrest it made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest.... The two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest, so that an independent authority exercising judicial powers may without delay apply its mind to his case. The Criminal Procedure Code contains analogous provisions in Sections 60 and 340 but our Constitution makers were anxious to make these safeguards an integral part of fundamental rights....
8. Now, what do these guarantees signify and imply ? Is the "due process", supposed to be incorporated in Clauses (1) and (2) of Article 22, incapable of meaning or contemplating no other remedy, in the case of illegal detention, except a writ of habeas corpus in the High Court ? Has the Magistrate, without whose authority Article 22(2) says, -- no person can be detained in custody beyond the period of 24 hours, no power to ensure compliance with the said constitutional mandate ? Is it not possible to devise an immediate, on the spot, and effective procedure from the said Articles to ensure observance of the constitutional guarantees contained in the said provisions ?
9. A detention of a person in police custody beyond 24 hours, is illegal. It can neither be cured nor waived. Such person or any other person on his behalf, can petition the High Court for a writ of Habeas Corpus. This is a constitutional remedy and cannot be denied even on the ground that an alternative remedy is available; (Gohar Begum v. Saggi, AIR 1960 SC 93 : (1960 Cri LJ 164)). But, what is the Magistrate to do when it is brought to his notice that without his 'authority', a person arrested is being held in police custody for more than 24 hours ? Is he helpless ? Can he not take any steps for enforcing the constitutional guarantee ? Is there no way he can enforce his "authority" to prevent the infringement of a fundamental right ? In other words, is the "authority" conferred upon by him by the Constitution unenforceable. Can he not call upon the concerned police officers to state before him whether they have arrested a particular person, and if so, where is he now and why is he not produced before a Magistrate within 24 hours ? We are of the considered opinion that the Magistrate is not helpless in the matter. Whenever a complaint is received that a person has been arrested within his jurisdiction more than 24 hours earlier, but has not been produced before a Magistrate or a complaint is made that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can, and should call upon the concerned police officer to state, in the form of an affidavit, whether the allegations made by the complainant are true, and if so, on what and under whose authority he is being so held ? The police officer or the other authority, as the case may be, shall have to state whether he has made the arrest, and if so, where is the person arrested now, or whether such person is being detained by him or by his subordinates. The officers must file such an affidavit within a day or two, since the required information is available with themselves, or can be gathered within a few hours. They must also produce the arrested person before the Magistrate forthwith, if not already produced before another Magistrate. The Magistrate shall thereupon either pass orders setting the arrested person at liberty, or pass appropriate orders in accordance with law depending on the facts of the case as he is indeed bound to do; (Madhu Limaye in Re: AIR 1969 SC 1014/1019 : (1969 Cri LJ 1440 at p. 1445)). If the arrest or detention is denied and the complainant disputes the same, the Magistrate can also make an enquiry into the disputed question and pass appropriate orders.
10. The Magistrate can always issue a search warrant as contemplated by Section 97, Cr.P.C. The power under Section 97 is independent of, and distinct from, the procedure and power mentioned earlier as being implicit in and flowing from Clauses (1) and (2) of Article 22 of the Constitution.
11. Another aspect : If a police officer or other authority called upon to file a counter-affidavit refuses to file an affidavit, he will be guilty of criminal contempt of court within the meaning of Clause (c) of Section 2 of the Contempt of Courts Act, 1971. The definition of 'criminal contempt' reads as follows : --
2. In this Act, unless the context otherwise requires --
(a) and (b) xxx xxx xxx xxx
(c) "Criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which --
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner...
Without doubt, the refusal to file an affidavit, or. filing a false affidavit interferes, or tends to interfere with, the due course of any judicial proceeding, or at any rate, interferes or tends to interfere with the administration of justice, as ordained by the Constitution. In case such a situation arises, it has to be dealt with in accordance with the Contempt of Courts Act, 1971, in addition to other Criminal or Civil action as may be permissible in law.
12. We are of the opinion that the procedure indicated by us hereinbefore is inherent in, and is warranted by Section 190(1)(c) and Section 156(3) of the Code of Criminal Procedure, independent of, and apart from Clauses (1) and (2) of Article 22 of the Constution. Section 156, Cr.P.C. empowers an officer in charge of a Police Station, as also a Magistrate, to investigate or to order investigation into a cognizable case.
13. Once we recognize that detention beyond 24 hours is an offence punishable under Section 342, I.P.C., it would follow that when information is placed before a Magistrate that such an offence is, or is being committed, he can order the officer in charge of a police station to investigate the same. Section 342 is a cognizable offence. Where a complaint is made against an officer in charge of a police station himself, the Magistrate must be held to have the power to enquire into the allegation by himself and then pass appropriate orders. Similarly, Section 190 of Cr.P.C. (Clause (c) of Sub-section (1)) empowers a Magistrate to take cognizance of any offence upon information received from any person other than a police officer. As stated earlier, Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence. Magistrate can take notice of an allegation disclosing commission of a crime with a view to set the law in motion to bring the offender to book. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly, if the police does not act according to law. Before he takes cognizance of the offence, it should be open to the Magistrate to verify whether the information received by him is true or not. Such a power is again implicit in the very power to take cognizance, and the procedure indicated by us above is a procedure for verification. We are thus of the opinion that the provisions of the Code of Criminal Procedure, and in particular Sub-section (1) of Section 190, as also Sub-section (3) of Section 156 do warrant and imply the above procedure.
14. The procedure indicated by us hereinbefore does not, and cannot be an alternative or a substitute for the remedy of Habeas Corpus available to every citizen of this country under Article 226 of the Constitution of India, besides, of course, those under Article 32. This is only an additional remedy which is open to a person to adopt, if he so chooses. If he comes directly to this Court by way of Habeas Corpus without approaching a Magistrate, it will not be said that he ought to follow that procedure first before invoking this Court's jurisdiction by way of habeas corpus. As we have said hereinbefore, the idea is to provide a quick, on-the-spot remedy in case of infringement of constitutional guarantees and to avoid delays which have become inherent in a proceeding of habeas corpus. Since every minute of illegal detention is violation of the constitutional guarantee, and also because a fundamental right cannot be waived by a person even if he so chooses, we thought that such a procedure would make the guarantees contained in Clauses (1) and (2) of Article 22 more realistic, and more effective. An identical view has been expressed by a Division Bench of the High Court of Andhra Pradesh in M. Sudhakar v. Sub-Inspector of Police, (1986) 1 AP LJ (HC) 235).
15. On the facts before us, in view of the order of Magistrate remanding Babukuttan to judicial custody, petitioner is not entitled to any relief. Petition is dismissed. Send a copy of this judgment to the Director General of Police and the Chief Secretary to Government.
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