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1994 Supreme(All) 147
HIGH COURT OF ALLAHABAD
K.C.Bhargava
VIKRAM
Versus
STATE OF U P
Decided On : 11 February 1994
Criminal Misc. Case No. 2755 (B) of 1993
ARUN SINHA, M.K.NIGAM, S.P.PANDEY, SATENDRA SINGH,
The prosecution must prove compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC by providing a corresponding entry in the general diary or recovery memo detailing the grounds communicated to the accused at the time of arrest.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 50(1) - ARTICLE 22(1) - ARREST - GROUNDS AND PARTICULARS OF OFFENCE - DISCLOSURE TO ACCUSED - REQUIREMENT - COMPLIANCE - EVIDENCE - GENERAL DIARY ENTRY - SUFFICIENCY - AFFIDAVIT OF ARRESTING OFFICER - RELIANCE - CONDITIONS.
Fact of the Case:
Vikram, the accused in a case involving offenses under Sections 307, 324, and 302 of the Indian Penal Code, filed a bail application, arguing that the provisions of Section 50(1) of the Code of Criminal Procedure (CrPC) and Article 22(1) of the Constitution of India were not followed during his arrest. The prosecution claimed that the grounds and particulars of the offenses were disclosed to the accused at the time of arrest, as evidenced by entries in the general diary and an affidavit by the arresting officer.
Finding of the Court:
The court noted that the accused had filed an affidavit denying that he was informed of any grounds for his arrest or that a knife was recovered on his pointing out. The arresting officer, in his affidavit, stated that the accused was informed of the reasons for his arrest and that he admitted to committing the crime. The court also considered case law on the issue of disclosure of grounds and particulars of offenses to arrested persons.
Issues: 1. Whether the statement of the arresting officer in a counter-affidavit, claiming compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC, can be relied upon without a corresponding entry in the general diary or recovery memo providing details of the grounds communicated to the accused at the time of arrest? 2. Whether it is the statutory duty of the prosecution to prove compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC, or is it necessary for the arrested person to file an affidavit stating that full grounds of arrest were not disclosed?
Ratio Decidendi: The court held that the statement of the arresting officer in a counter-affidavit, claiming compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC, cannot be relied upon without a corresponding entry in the general diary or recovery memo providing details of the grounds communicated to the accused at the time of arrest. The court reasoned that the arresting officer cannot be presumed to remember such details in all cases and must refresh his memory from the entry in the general diary. The court also held that it is the statutory duty of the prosecution to prove compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC, and it is not necessary for the arrested person to file an affidavit stating that full grounds of arrest were not disclosed.
Final Decision: The court referred the following questions to a Larger Bench for decision: 1. Whether the statement of the arresting officer in a counter-affidavit, claiming compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC, can be relied upon without a corresponding entry in the general diary/recovery memo giving details of the grounds told to the accused at the time of arrest? 2. Whether it is the statutory duty of the prosecution to prove compliance with Article 22(1) of the Constitution and Section 50(1) of the CrPC or it is necessary for the arrested person to file an affidavit that full grounds of arrest were not told to him at the time of arrest?
This bail application has been moved by one Vikram who has been an accused in offences punishable under Section 307/324/302, I. P. C. Police Station. Ghazipur District Lucknow.
2. Learned counsel for the petitioner as well as learned Additional Government Advocate have been heard. Learned counsel for the petitioner has argued that in the present case provisions of Section 50 (1) of Cr. P. C. and Article 22 (1) of the Constitution of India have not been followed inas much as the grounds and the full particulars of the offences were not disclosed to him at the time of his arrest. This contention of the learned counsel for the petitioner is disputed by the learned Additional Government Advocate. According to the learned Additional Government Advocate the particulars of offences were indicated to the petitioner at the time of arrest which fact is corroborated by entry in the general diary and in the affidavit of the arresting officer. A perusal of file will go to show that accused Vikram was arrested on 4-5-1993. Annexuie-1 to the bail application is the F. I. R. which has been lodged against the applicant. Annexure-2 is the copy of recovery memo. The incident is alleged to have taken place on 3-5- 1993 and a report of that inci dent was lodged on the same day at about 10. 30 a. m. A perusal of Annexure-2 recovery memo, goes to show that Vikram was arrested on 4-5-1993 at about 9. 00 p. m. He admitted to have committed the crime and on the pointing out of Vikram, one knife was recovered and statement under Section 161, Cr. P. C. was also recorded. In the present case the accused has also tiled an affidavit stating therein that he has not committed any offence and he was arrested by the police from his house and he was not disclosed any ground on which be was being arrested. He has further stated that no knife was recovered on his pointing out. As against this Sri A. N. Shukla who is arresting officer also filed an affidavit stating therein that the accused was arrested as he was wanted in crime No. 262/93 under Section 307/324/302, I. P. C. and he had committed the murder of deceased Iqbal. The accused was told the reasons of his arrest at the time of his arrest. He also, on being questioned, became ready to get the knife recovered. The knife was got recovered and recovery memo was prepared on the spot and a copy of the same was given to the accused whose signatures were also obtained on the memo. A copy of Fard Baramdgi is also attached to the counter-affidavit.
3. Learned counsel for the petitioner and the learned Government Advocate have placed reliance on certain case law decided by this Court. Learned counsel for the petitioner has placed reliance on the case of Ashok Kumar Singh v. State of U. P. , 1987 L. L. J. 273. In that case the petitioner was arrested and his licensed gun was seized by the police. A recovery memo was also prepared at the spot. A ground was taken that on arrest the petitioner was not informed of the grounds of arrest as required by Article 22 (1) of the Constitution of India or of full particulars of the offence as required by Sec tion 50 (1) of the Code of Criminal Procedure. A counter-affidavit was also filed by the Station Officer of P. S. Bisawan Distt. Sitapur. In the general diary it was stated that the ground of the arrest was stated. It was stated that "giraftaari ka karan bataya gaya" In this case a reference was also made of the case of Subhash Bhandhari v. State of U. P. , 1986 LLJ 271, wherein an affidavit of Sub-Inspector Gajendra Pal Singh was
filed before the Sessions Judge stating that the accused committed the murder of the uncle of Raj Kumar resident of village Bargawan on 9-6-1986 at 7. 00 a. m. before the shop of Katori by firing at him and, therefore, he was arrested after commit ting the offence punishable under Section 302, I. P. C. On the basis of these facts the Court observed as under:
"we do not find it possible to accept this statement made in the affidavit
