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High Court Of Delhi
BALRAJ MADHOK - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 2 of 1966
Decided On : 11/18/1966
ARREST - SECTION 151 OF THE CODE OF CRIMINAL PROCEDURE - CONDITIONS FOR ARREST - DETENTION - SECTION 107 OF THE CODE OF CRIMINAL PROCEDURE - PROCEDURE FOR TAKING SECURITY - HABEAS CORPUS - ILLEGAL DETENTION - WRIT OF HABEAS CORPUS ISSUED.
Fact of the Case:
The petitioners were arrested under Section 107 read with Section 151 of the Code of Criminal Procedure (CrPC) for allegedly designing to commit a cognizable offense. They were produced before a Magistrate, who ordered their release on bail, but they failed to furnish security and were remanded to judicial custody.
Finding of the Court:
The Court held that the arrest of the petitioners was not in accordance with law as the police officers did not have sufficient grounds to believe that the petitioners were designing to commit a cognizable offense. The Court also held that the detention of the petitioners was illegal as the Magistrate had not followed the proper procedure for taking security under Section 107 of the CrPC.
Issues: 1. Whether the arrest of the petitioners was in accordance with law? 2. Whether the detention of the petitioners was in accordance with law?
Ratio Decidendi: 1. The Court held that the arrest of the petitioners was not in accordance with law as the police officers did not have sufficient grounds to believe that the petitioners were designing to commit a cognizable offense. The Court relied on the fact that the police officers had stated in their affidavits that they arrested the petitioners under Section 107 read with Section 151 of the CrPC, which provides for the arrest of a person who is designing to commit a cognizable offense. However, the Court held that the police officers did not have sufficient grounds to believe that the petitioners were designing to commit a cognizable offense, as they had only stated that they had apprehended an imminent danger of breach of peace from the petitioners. The Court held that apprehension of a breach of peace is not the same as knowledge that the person concerned is designing to commit a cognizable offense. 2. The Court held that the detention of the petitioners was illegal as the Magistrate had not followed the proper procedure for taking security under Section 107 of the CrPC. The Court relied on the fact that the Magistrate had not made an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it was to be in force, and the number, character, and class of sureties (if any) required, as required by Section 112 of the CrPC. The Court also held that the Magistrate had not read or explained the order to the petitioners, as required by Section 113 of the CrPC.
Final Decision: The Court allowed the petitions and directed the petitioners to be set at liberty forthwith.
( 1 ) IN each of these nine criminal writ petititions (Nos. 2 to 10 of 1966) under Articles 22 and 226 of the Constitution of India and under Section 491 of the Code of Criminal Procedure, the petitioner therein prays that this court may be pleased to issue a writ of habeaus corpus calling upon the respondent to produce him in court and to show on what authority they have detained him and, if they fail to show lawful authority for doing so, to sat him at liberty.
( 2 ) THE facts of these cases ire more or less identical. Common questions of law arise for decision in these petitions. Hence they are consolidated together. After the ugly incidents in Delhi on 7th of this month, the petitioners were arrested between the 7th and 13th of this month. They are now detained in prison. They allege that they were not informed why they were arrested, nor were they produced before any Magistrate. Their case is that they are unlawfully detained.
( 3 ) THE case for the Respondent 1s that the petitioners were arrested under Section 107 read with Section 151 of the Code. Thereafter they were produced before one or the other of the Magistrates in Delhi, who had ordered them to be released on bail, but as they failed to give the security ordered, they had been ordered to be kept up in judicial custody. For giving relief to the petitioners in these petitions, it is necessary to find out which one of the two reasons is the correct version, as I am of the opinion that on the very facts pat forward by the respondents,it is clear the datention of the petitioners is not in accordance with law.
( 4 ) THE police officers who arrested the petitioners have filed affidavit in these cases. According to them they arrested the petitioners under Section 107 read with Section 151 of the Code. The Magistrates, who are said to have ordered their detention, have also filed their affidavits in these cases. In their affidavits they say, that when the petitioners were produced before them, they had directed their release on bail on their furnishing security, as ordered but as they failed to furnish security, they have been remanded to judicial custody.
( 5 ) THE first question that arises for decision is whether on the facts stated by the respondents, the arrest of any of the petitioners can be considered legal. For deciding this question it is necessary to examine the reason given by the officers who arrested the petitioners,for arresting them. As the reason given in all the cases is more or less identical, it would be sufficient if I quote the relevant passage from the affidavit filed in one of the petitions. Shri Bhin Singh, Inspector Police, who arrested Shri Balraj Mudhok, the petitioner in writ petition No. 2 of 1966, had stated thus in his affidavit : -
"that on 9th November, 1966 T arrested Shri Balraj Mudhok, the petitioner, and Sarvshri Arnrit Lal sou of Shri Lachhman Dass, Mela Ram son of Ladha Ram and Ram Saroop son of Mangal Sain, all residents of New Rajindre Nagar, New Delhi, under Section 107/ 151 of the Code of Criminal Procedure, on apprehension of immenent danger of breach of peace from them and I informed them the reasons for their arrest. "the question is whether any arrest under Section 151 of the Code, could have been made for the aforementioned reason. That section says:-
"a Police officer knowing of a design to commit any cognizable offence may arrest without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented,"the power given under this provision impugnes on one of the important liberties of an individual. Hence it is necessary that in the exercise of that power, there should be strict compliance with the requirments of the law. In these cases, as mentioned earlier, the arrests of the petitioners were said to have been made under section 107 of the Code. Section 107 does not deal with any offence. That provides for tax
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