Decided on July 26,1951

Prabhat Malla Barooah Appellant
D.C. And Ors. Respondents


Thadani, J. - (1.)THIS is an application for a writ of Habeas Corpus under the provisions of Article 236, Constitution of India, in a case in which the petitioner, Prabhat Malla Barooah, is being prosecuted under Section 17, Criminal Law Amendment Act (Act 14 of 1908), in the Court of a Magistrate at Nalbari. Mr. Barua for the petitioner demands the release of the petitioner on the following grounds: (1) That the petitioner, after his arrest by the Police, was not produced before a Court, but before a Magistrate who was not then sitting as a Court. (2) That the petitioner was produced before a Magistrate only on the occasion of the first remand, but not on any subsequent occasion. (3) That Sections 15 and 16, Criminal Law Amendment Act offend the fundamental right guaranteed by Article 19(1)(c), Constitution of India, and are, therefore, void; that in any case, the provisions of Sections 15 and 16, Criminal Law Amendment Act, are not reasonable restrictions on the exercise of the right conferred by Clause (c) of Article 19, Constitution of India.
(2.)THERE is no substance in the first two contentions. It is not disputed by Mr. Barua that the Magistrate before whom the petitioner was produced for the purposes of a remand, did pass an order of remand. An order of remand can only be passed by a Magistrate sitting as a Court. It is immaterial where such a Magistrate was sitting at the time of the passing of the order. Neither Article 22, Constitution of India, nor Section 167, Criminal P.C. requires the production of an accused person before a Magistrate on the occasion of a subsequent remand.
In regard to the third contention, Mr. Barua has relied upon the F.B. decision of the Madras High Court, V.G. Row v. : AIR1951Mad147 which has taken the view that Sections 15 and 16, Criminal Law Amendment Act, offend the fundamental right given by Article 19(1)(c), Constitution of India. The case before the learned Judges of the Madras High Court was a case under the Criminal Law Amendment Act, 1908, as amended by the Madras Legislature. With all respect, any observations made by the learned Judges on the question of the validity or otherwise of the provisions of the unamended Act, can only be regarded as obiter dicta. The State of Assam has not amended the Criminal Law Amendment Act of 1908 (Act 14 of 1908). The case before me is one under the Criminal Law Amendment Act itself.

(3.)MR . Barua for the petitioner conceded that the Criminal Law Amendment Act is punitive enactment, dealing as it does with a punishable offence. It is manifest that when an offence is alleged to have been committed and the offender has to be tried, some agency must be empowered to set the law in motion. In an ordinary cognizable offence, the agency is the Police which acts upon information received. The power to set the law in motion in respect of an offence punishable under Section 17(1), Criminal Law Amendment Act, is conferred upon a Provincial Government a power which it exercises in the form of a declaration made under Section 16. An offence punishable under Section 17(1) is a cognizable offence. Until a declaration is made by the Provincial Government under Section 16 of the Act, the Police cannot arrest the offender without a warrant. In other words, the effect of a declaration under Section 16 is to enable the Police to investigate a cognizable offence punishable under Section 17.

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