1962 Supreme(Gau) 14

Manipur High Court
T. N. R. TIRUMALPAD, J.
Gaibidingpao Kabul
Versus
Union Territory of Manipur
Criminal Misc. Appln. No. 55 of 1961
Decided On : 15-02-1962

A Magistrate cannot order the detention of a person arrested under Section 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958, without a diary relating to the case and the report given under Section 5 of the Act by the Military.

Headnote:

HABEAS CORPUS - ARREST AND DETENTION - ARREST UNDER ARMED FORCES (ASSAM AND MANIPUR) SPECIAL POWERS ACT, 1958 - PROCEDURE TO BE FOLLOWED - DETENTION IN JAIL PENDING PROCEEDINGS UNDER SECTION 109, CR. P. C. - ILLEGAL - RIGHT TO BE INFORMED OF GROUNDS OF ARREST - DUTY OF MAGISTRATE - LINK MAGISTRATES - APPOINTMENT AND POWERS.

Fact of the Case:

The petitioner, Gaibidingpao Kabui, was arrested by the Army under Section 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958, and handed over to the Police. The Police produced him before a Magistrate with a report that the O/C Tamenglong and Nungba Police Stations have been asked to submit N. F. I. R. under Section 109, Cr. P. C. for prosecution. The Magistrate remanded the petitioner to Jail custody till 30-8-1961. On 24-8-1961, the petitioner sent a petition to the Magistrate from jail stating that he was innocent and that a Police Report may be immediately called for and he may be released. The Magistrate sent the petition for a Police report by 30-8-1961. The O/C I. P. S. endorsed a report on the said petition on 30-8-1961 that the village from where the petitioner was arrested was within the jurisdiction of Nungba Police Station and so the O/C Nungba Police Station may be directed to submit the necessary prosecution report. The petitioner and the two others were produced before the Magistrate with this report and the Magistrate again remanded them to custody till 13-9-1961 and in doing so he passed an order in the following words: "Ask O/C concerned to submit an offence report". On 13-9-1961, they were again produced before the Magistrate and he passed an order that no offence report has yet been submitted, nor any report for further remand, that there has been serious objection from the side of the arrested persons and that the O/C Imphal Police Station will be directed to submit a report by the next remand date at any rate and that the arrested persons will be remanded till 27-9-1961 and he directed that a copy of the order should be sent to the Additional Superintendent of Police for necessary action. On 27-9-1961, they were again produced before the Magistrate without any offence report and the Magistrate again remanded them till 11-10-1961 saying that the I/O will be asked to submit the offence report early. After this further remand, a letter was received by the Court from the S. I. of the Imphal Police Station stating that the O/C Tamenglong and Nungba Police Stations have been asked to submit offence report against the arrested persons and that report had also been submitted to the Court praying for directing the Police Stations concerned to submit necessary reports. On this letter, an endorsement had been made by the O/C, Imphal Police Station stating that it was beyond the competence of the Imphal Police Station to submit a prosecution report in the case as the place of occurrence was beyond Imphal Police Station and that therefore the Police Stations concerned may be directed to submit the necessary prosecution report. Thus, the O/C Imphal Police Station was throwing the burden on the Court for getting the necessary offence report from the Tamenglong and Nungba Police Stations concerned. On receipt of this letter, the Magistrate wrote on the order sheet that he has received the report for further remand. Thus, the three arrested persons continued in Jail custody without any offence report from the Police and without the Court knowing why they were being remanded. The petitioner filed the present application for the issue of a writ of habeas corpus before this Court on 22-9-1961 in which he pointed out that his arrest itself was done mala fide without any F. I. R. or any other information and without his being informed of the grounds for his arrest and detention in Jail. It was pointed out that the arrest was illegal and in contravention of the provisions of the Cri. P. C., that his detention was against the provision of section 167, Cri. P. C., that the remand orders were being passed by the Magistrate without any jurisdiction and without recording any reason and that such detention was against the fundamental rights of the petitioner.

Finding of the Court:

The Court held that the detention of the petitioner and the other two arrested persons was totally against law and they have to be directed to be released from Jail. The Court further held that the Magistrate had no authority under Section 167, Cr. P. C. to order the detention of the 3 persons produced before him and that the Magistrate should have seen to it that the petitioner was informed of the grounds of his arrest.

Issues: 1. Whether the arrest and detention of the petitioner was legal? 2. Whether the Magistrate had the authority to order the detention of the petitioner under Section 167, Cr. P. C.? 3. Whether the Magistrate was duty-bound to inform the petitioner of the grounds of his arrest?

Ratio Decidendi: 1. The arrest of the petitioner under Section 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958, was legal as the Army had reasonable suspicion that the petitioner had committed or was about to commit a cognizable offence. 2. The Magistrate had no authority to order the detention of the petitioner under Section 167, Cr. P. C., as no diary relating to the case was submitted and the Police Officer did not produce the report given under Section 5 of the Act by the Military. 3. The Magistrate was duty-bound to inform the petitioner of the grounds of his arrest as per Article 22 of the Constitution.

Final Decision: The Court directed the release of the petitioner and the other two arrested persons from Jail.