Decided on January 31,1983



D.H.SHUKLA, J. - (1.) The petitioner No. 1 Soni Natverlal Prabhudas is an elder brother of petitioner No. 2 Soni Jinabhai alias Hasmukhlal Prabhudas who has been added as petitioner No. 2 during the pendency of this application vide order dated 22-3-1982. The petitioner No. 2 had purchased allegedly in good faith a golden chain weighing 1 Tola and 10 annas for Rs. 2840.00 (rupees two thousand eight hundred forty only) at his aforesaid shop at Viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village Panar Taluka Viramgam which is at a distance of about 10 Kms. from Viramgam. The petitioner No. 2 had no reason whatever to suspect the said property to be a stolen one at the time of the aforesaid purchase. It is alleged that petitioner No. 2 paid a reasonable market price for the said property as stated above.
(2.) This application was presented by the petitioner No. 1 on 19 while the petitioner No. 2 was in Police custody on account of the aforesaid remand order. It is submitted that the arrest of the petitioner No. 2 was not only illegal unconstitutional and without jurisdiction but the same was also mala fide. Hence this application was originally filed by the petitioner No. 1 to challenge the propriety legality constitutionality correctness and validity of the arrest of the petitioner No. 2 as well as the subsequent order of remand to the Police custody passed by the respondent No. 5. As pointed out earlier the petitioner No. 2 has been added as a party later by an amendment order dated 22-3-82 as by that time the respondent No. 5 had rejected the request of the investigating agency for further remand of accused No. 2 and as consequently accused No. 2 was released from the custody.
(3.) The application is filed under Articles 226 and 227 of the Constitution of India for the enforcement of the fundamental rights under Articles 21 and 22(1) of the Constitution of India and statutory right under sec. 50(1) of the Criminal Procedure Code. It is filed on the basis of the following main contentions : (1) The respondents Nos. 3 and 4 have acted mala fide as the petitioner No. 2 refused to satisfy the demand for illegal gratification on Rs. 5 0 made by the respondents Nos. 3 and 4 in the Police Station at Viramgam on 16/03/1982 (2) The petitioner No. 2 was arrested in contravention and deliberate disregard of the constitutional mandates as embodied in Article 21 & 22(1) of the Constitution of India and sec 50 read with sec. 167(4) of the Criminal Procedure Code Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 22(1) says that 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. Section 50(1) of the Criminal Procedure Code enjoins that every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offences for which he is arrested or other grounds of such arrest. These provisions are enacted as a matter of abundant caution to safeguard the rights and liberty of the accused persons against whom ex parte material is collected during the police investigation and who is arrested on the strength of such a material so as to enable them to know at the initial stage as to why he is arrested and also to consult a legal practitioner of his choice. It is submitted that provision of sec. 50 Criminal Procedure Code is a new one added on the recommendations of the Joint Committee. Its provisions are material and cannot be overlooked It brings the law in conformity with the provisions of Article 22 of the Constitution of India enabling the person arrested to move for Habeas Corpus to obtain his release. The section confers a valuable right and non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. It is further submitted that a citizens liberty cannot be curtailed except in accordance with the law. When a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest in the face of such an affidavit the Police diary cannot be perused to verify the Police Officers claim of oral intimation of such particulars. Even if such oral communication was made whether full particulars were communicated not being known the arrest and detention of the person must be termed illegal. These submissions are made on the basis of the reported rulings of the High Court of Calcutta in the case of GOVIND PRASAD V. STATE OF WEST BENGAL REPORTED IN CRIMINAL LAW JOURNAL 1249 AND OF THE HIGH COURT OF GAUHATI IN THE CASE OF AJITKUMAR V. STATE OF ASSAM REPORTED IN 1966 CRIMINAL LAW JOURNAL 1303. (3) It is further submitted that in our country majority of population is absolutely illiterate and unaware of its fundamental and legal rights. It is therefore the duty of those who are exercising public power to be extra careful in seeing that no public power is abused or misused since all powers are intended to serve the ends of justice and not to defeat the same. (4) The impugned action of the respondents Nos. 2 3 and 4 is without jurisdiction inasmuch as the original complaint was filed at the Bavla Police Station and therefore the respondent Nos. 2 3 and 4 had no jurisdiction to carry out the investigation of the complaint filed at Bavlu Police Station and hence the search seizure and arrest are illegal. (5)The petitioner No. 2 was a bona fide purchaser for value without notice and there was no material whatever with the Investigating Officer to connect the petitioner No. 2 with the offence alleged in the complaint filed at Bavla Police Station regarding theft of ornaments. Thus there was no reasonable ground whatever for the search seizure and arrest of the petitioner No. 2. (6) The order of remand passed by the respondent No. 5 at 1-30 p. m. on 17-3-1982 at Kadi is also illegal as the order does not comply with sec. 167 of the Criminal Procedure Code. The respondent No. 5 has not recorded convincing reasons for granting remand of petitioner No. 2 to Police. The reasons recorded by him are simply the semblance of reasons. Respondent No. 5 has not considered the specific grounds justifying exercise of powers under sec. 167 of the Criminal Procedure Code. The order is perfunctory and has resulted into prejudice to the petitioner No. 2 and miscarriage of justice. (7) The petitioners have challenge the search and seizure made by the respondents Nos. 2 3 and 4 as being illegal having been against the relevant provisions of the Criminal Procedure Code namely secs. 165 166 in regard to the search and secs. 94 165 and 166 in regard to seizure. (8) In the end petitioners have challenged the entire investigation carried out by the Police against petitioner No. 2 as having been illegal and in violation of the provisions for investigation made under secs. 154 to 173 of the Criminal Procedure Code. 22. The gravamen of Mr. Barots attack on the investigation was that the investigation is initiated against petitioner No. 2 and is carried out of mala fides.;

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