Full Judgment Text
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CASE NO.:
Appeal (crl.) 109 of 2001
PETITIONER:
Ahmed Noormohmed Bhatti
RESPONDENT:
State of Gujarat and Ors.
DATE OF JUDGMENT: 16/03/2005
BENCH:
N. Santosh Hegde & B.P. Singh & S.B. Sinha
JUDGMENT:
JUDGMENT
B.P. SINGH, J.
The petitioner herein filed a petition before the High Court of Gujarat at
Ahmedabad under Article 226 of the Constitution of India and Section 482 of
the Code of Criminal Procedure. In his petition, the petitioner prayed for
quashing of the criminal proceedings initiated against him on the
complaints of respondents 5, 6 and 7. He also prayed in the said petition
for a declaration that Section 151 of the Code of Criminal Procedure is
unconstitutional and ultra vires. The High Court by its impugned judgment
and order dated 4th April, 1996 in Special Criminal Application No. 95 of
1996 rejected the petition holding that there was no ground to hold that
Section 151 of the Code of Criminal Procedure was unconstitutional and
further there was no ground to quash the proceedings initiated against the
petitioner in which process has been issued.
So far as the challenge to Section 151 of the Code of Criminal Procedure is
concerned the High Court has noticed the fact that the prayer for declaring
the provision as unconstitutional is not supported by factual assertions
and the writ petition lacked specific averments and allegations of fact on
the basis of which it was contended that the provision was ultra vires and
unconstitutional. However, the High Court considered the arguments
addressed before it and rejected the same holding that the powers conferred
upon the police authorities under Section 151 of the Code of Criminal
Procedure were well defined, and guidelines for their exercise are also
found in the provision so as to save it from the charge of being either
arbitrary or unreasonable. The detention under Section 151 of the Code of
Criminal Procedure was only for a limited period of 24 hours for the
purpose mentioned therein and the said provision, therefore, offended no
provision of the Constitution. So far as the criminal proceedings pending
against the petitioner are concerned, they were sought to be challenged on
the ground of being mala fide, an abuse of the process of Court and being
untrue and unfounded. The High Court after considering the facts of the
case came to the conclusion that having regard to the principles laid down
by this Court in State of Haryana v. Bhajan Lal: [1992] Suppl. 1 SCC 335 no
case was made out for quashing the aforesaid proceedings.
We may only notice a few facts which are necessary for the disposal of this
petition. As urged before us by the counsel for the petitioner, on 11th
December, 1995 a complaint was made by respondent No. 5 to Dy.
Superintendent of Police, Kutch-Bhuj regarding an incident which took place
on 9th December, 1995. In connection with that incident statements were
recorded on 13th December, 1995. It is alleged that on 16th December, 1995
the petitioner was detained by the Inspector of Police, Bhuj, respondent
No. 4, under Section 151 of the Code of Criminal Procedure. However, he was
produced before the Magistrate and a Chapter Proceeding under Sections 107
& 116(3) of the Code of Criminal Procedure was initiated against him on the
basis of the complaint of respondent No. 5. It is also not in dispute that
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FIR No. 100/1996 dated 9th January, 1996 has been recorded against the
petitioner alleging commission of offences punishable under Sections 504,
506 and 507 of the Indian Penal Code on the complaint of respondent No. 6.
Similarly a First Information Report was lodged by respondent No. 7 against
the petitioner on 30th December, 1995 alleging commission of offences
punishable under Sections 506 (2), 507 and 114 of Indian Penal Code. On the
basis of the First Information Reports lodged by the persons concerned, the
police has investigated the cases and taken necessary steps in the matters,
and it was stated before us that the Magistrates concerned have taken
cognizance and issued process in those cases.
Section 151 appears under Chapter XI of the Code of Criminal Procedure
which relates to preventive action of the police. Sub-section (1) thereof
empowers a police officer to arrest, without orders from a Magistrate and
without a warrant, a person designing to commit any cognizable offence.
Section further requires that such an arrest should be made only if it
appears to such police officer that the commission of the offence cannot be
otherwise prevented. Sub-section (2) of Section 151 of the Code of Criminal
Procedure places a limitation on the period of detention by providing that
no person arrested under sub-section (1) shall be detained in custody for a
period exceeding 24 hours from the time of his arrest, unless his further
detention is required or authorized under any other provisions of this Code
or any other law for the time being in force.
A mere perusal of Section 151 of the Code of Criminal Procedure makes it
clear that the conditions under which a police officer may arrest a person
without an order from a Magistrate and without a warrant, have been laid
down in Section 151. He can do so only if he has come to know of a design
of the person concerned to commit any cognizable offence. A further
condition for the exercise of such power, which must also be fulfilled, is
that the arrest should be made only if it appears to the police officer
concerned that the commission of the offence cannot be otherwise prevented.
The Section, therefore, expressly lays down the requirements for the
exercise of the power to arrest without an order from a Magistrate and
without warrant. If these conditions are not fulfilled and, a person is
arrested under Section 151 of the Code of Criminal Procedure, the arresting
authority may be exposed to proceedings under the law. Sub-section (2) lays
down the rule that normally a person so arrested shall be detained in
custody not for a period exceeding 24 hours. It, therefore, follows that in
the absence of anything else, on expiry of 24 hours, he must be released.
The release, however, is not insisted upon only when his further detention
is required or authorized under any other provision of the Code or of any
other law for the time being in force. It, therefore, follows that if
before the expiry of 24 hours of detention it is found that the person
concerned is required to be detained under any other provision of the Code
of Criminal Procedure, or of any other law for the time being in force, he
may not be released and his detention may continue under such law or such
provision of the Code. The detention thereafter is not under Section 151 of
the Code of Criminal Procedure but under the relevant provision of the Code
or any other law for the time being in force as the case may be. Section
151, therefore, only provides for arrest of a person to prevent the
commission of a cognizable offence by him. The provision by no stretch of
imagination can be said to be either arbitrary or unreasonable or
infringing upon the fundamental rights of a citizen under Articles 21 and
22 of the Constitution of India.
In Joginder Kumar v. State of U.P. and Ors : [1994] 4 SCC 260 this Court
observed : -
‘‘8. The horizon of human rights is expanding. At the same time, the crime
rate is also increasing. Of late, this Court has been receiving complaints
about violation of human rights because of indiscriminate arrests. How are
we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest
is one of balancing individual rights, liberties and privileges, on the one
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hand, and individual duties, obligations and responsibilities on the other;
of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding
what is wanted and where to put the weight and the emphasis; of deciding
which comes first - the criminal or society, the law violator or the law
abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly
met when he wrestled with a similar task of balancing individual rights
against society’s rights and wisely held that the exclusion rule was bad
law, that society came first, and that the criminal should not go free
because the constable blundered...’’
This Court laid down certain requirements in Joginder Kumar (supra) for
effective enforcement of the fundamental rights inherent in Articles 21 and
22(1) of the Constitution of India which require to be recognized and
scrupulously protected. The requirements laid down are as follows : -
‘‘1. An arrested person being held in custody is entitled, if he so
requests to have one friend, relative or other person who is known to him
or likely to take an interest in his welfare told as far as is practicable
that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is
brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was
informed of the arrest. These protections from power must be held
to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is
produced, to satisfy himself that these requirements have been complied
with’’.
In D.K. Basu v. State of West Bengal, [1997] 1 SCC 416 this Court has
issued requirements to be followed in all cases of arrest and detention
till legal provisions are made in that behalf as preventive measures. The
requirements laid down are : -
‘‘(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such memo
shall be attested by at least one witness, who may either be a
member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date
of arrest.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-
up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting
witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee
must be notified by the police where the next friend or relative of
the arrestee lives outside the district or town through the Legal
Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after
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the arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the
name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in
whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at
the time of his arrest and major and minor injuries, if any present
on his/her body, must be recorded at that time. The ‘‘Inspection
Memo’’ must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned.
Director, Health Services should prepare such a panel for all
tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Illaqa Magistrate for his
record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and
State headquarters, where information regarding the arrest and the
place of custody of the arrestee shall be communicated by the
officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a
conspicuous notice board.’’
These requirements are in addition to the constitutional and statutory
safeguards and do not detract from various directions given by the Courts
from time to time in connection with the safeguarding of the rights and
dignity of the arrestee. This Court has also cautioned that failure to
comply with the requirements aforesaid, shall apart from rendering the
official concerned liable for departmental action, also render him liable
to be punished for Contempt of Court.
Counsel for the petitioner submitted that such requirements must be laid
down in the case of an arrest under Section 151 of the Code of Criminal
Procedure. Counsel for the respondents conceded that the requirements laid
down in Joginder Kumar (supra) and D.K. Basu (supra) apply also to an
arrest made under Section 151 of the Code of Criminal Procedure . As we
have noticed earlier, Section 151 of the Code of Criminal Procedure itself
makes provision for the circumstances in which an arrest can be made under
that Section and also places a limitation on the period for which a person
so arrested may be detained. The guidelines are inbuilt in the provision
itself. Those statutory guidelines read with the requirements laid down by
this Court in Joginder Kumar (supra) and D.K. Basu (supra) provide an
assurance that the power shall not be abused and in case of abuse, the
authority concerned shall be adequately punished. A provision cannot be
held to be unreasonable or arbitrary and, therefore, unconstitutional,
merely because the authority vested with the power may abuse his authority.
Since several cases of abuse of authority in matters of arrest and
detention have come to the notice of this Court, this Court has laid down
the requirements which have to be followed in all cases of arrest and
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detention.
We, therefore, find no substance in the contention that Section 151 of the
Code of Criminal Procedure is unconstitutional and ultra vires the
constitutional provisions.
The next question is whether any interference by this Court is called for
in the criminal proceedings pending against the petitioner. As we have
noticed earlier, these proceedings have been initiated by private persons,
namely respondents 5 to 7. So far as the police authorities are concerned,
namely respondents 2 to 4, they are performing the statutory duties
enjoined upon them. Those proceedings are not motivated by any personal
animosity of the police officials concerned. The proceedings have been
initiated on complaints made by private persons under the law and the
proceedings are pending before the Courts which have jurisdiction to deal
with them. The High Court has examined the matter and has come to the
conclusion that those proceedings do not deserve to be quashed under
Article 226 of the Constitution of India or under Section 482 of the Code
of Criminal Procedure. We entirely agree with the High Court.
We find no merit in this appeal and the same is accordingly dismissed.