S. S. BYAS, J. -
(1.)- By this revision, the complainant Jethmal challenges the legality of the order of the learned Munsif & Judicial Magistrate, Sojat dated August 14, 1978, by which he dismissed his complaint on the ground that the accused could not be prosecuted for want of sanction of the State Government under section 197, Cr. P. C. There is no pronouncement of this Court on the point involved.
(2.)BRIEFLY stated, the relevant facts giving rise to this revision petition are that the complainant filed a complaint against the accused Khusalsingh - the then Station House Officer, Police Station Sojat in the Court of the Judicial Magistrate on December 23, 1977. The averments disclosed in the complaint were that a case under section 452, I. P. C. on F. I. R. No. 135/77 was registered against him at Police Station, Sojat by the accused. The accused was bent-upon to arrest and hand cuffle him. The complainant moved the Sessions Judge, Pali under section 438, Cr. P. C. for anticipatory bail and anticipatory bail was granted to him on December 3, 1977. The accused became highly annoyed when he failed in his attempt to arrest the complainant in the aforesaid case. In order to execute his ill-design to arrest the complainant, the accused registered a case under section 110, Cr. P. C. against him after when the order of anticipatory bail was passed by the learned Sessions Judge. At about 5. 00 A. M. on December 22, 1977, the complainant was called at Police Out Post, Chandawal by the accused. The accused asked him to furnish bail bonds in F. I. R No. 135/1977 as per directions of the Sessions Judge. The complainant submitted the bail-bonds. The accused thereafter told the complainant that through he was released on anticipatory bail in the aforesaid case, he was, being arrested in another case under section 110, Cr. P. C. The complainant told the accused that he be also released on bail in the proceedings under section 110. Cr. P. C. as there was a provision for bail in that proceedings The accused did not relent and refused to release him on bail. The complainant was brought from Chandawal to Police Station, Sojat and was lodged there in the lock-up. At about 11. 00 P. M. the complainant's Abvocate Shri Rameshwar Lal alongwith some other persons approached the accused and requested him to release the complainant as there was a provision of bail in a proceeding under sec. 110, Cr. P. C. The accused even then did not relent and refused to release the complainant on bail. Next day, the complainant was produced before the Sub-Divisional Magistrate, Sojat who ultimately enlarged him on bail. It was averred that the accused unlawfully arrested and detained the complainant and thus committed an offence under sec. 342, I. P. C. The learned Magistrate, after holding an enquiry under sec. 200 Cr. P. C, summoned the accused to face trail under sec. 342, I. P. C. The accused appeared before the learned Magistrate and submitted an application that he could not be prosecuted for want of sanction under sec. 197, Cr. P. C. of the State Government. It was stated by him that he arrested the complainant while discharging his duties of a public servant in the maintenance of public order. The State Government by a notification has extended the provisions of Section 197 (2) of the Code of Criminal Procedure to Police Officials of all ranks charged with the maintenance of public order. Since no sanction of the State Government was obtained for his prosecution, no cognizance of the offence could be taken againsthim and the criminal proceedings should be dropped. The objection raised by the accused found favour with the learned Magistrate. Accepting the objection, the learned Magistrate dropped the proceedings in the criminal case. Aggrieved against the said order of the learned Magistrate, the complainant has come up in revision.
I have heard the learned counsel for the parties and the learned Public Prosecutor.
The complainant was arrested in a proceeding under section 110 of the Code of Criminal Procedure. After his arrest, he was not released on bail. It would be, therefore, proper and useful to briefly notice the provisions of law having a direct bearing and relevancy on the issues involved.
Section 41 of the Code of Criminal Procedure gives the police the power to arrest persons without warrant. Sub-section (2) of this section reads as under:- " (2) any Officer Incharge of Police Station may in like manner arrest or cause to be arrested any person belonging to one or more of the categories of persons specified in section 109 or section 110 Cr. P. C. "
This sub-section is a powerful weapon in the hands of a police officer. The use of word 'may' shows that it is discretionary. Though the powers are discretionary in nature, the arrest is not a matter of caprice, depending on the whim or sweet will of the police officer. Since the arrest under sub-section (2) is an encroachment on the liberty of the subject, the powers should be exercised with care and caution. It follows from the word 'may' that the power of arrest should be exercised by the police officer with circumpection and due diligence.
(3.)A proceeding under section 110, Cr. P. C. is preventive in nature and not in respect of the commission of an offence. Though the powers of arrest are there in respect of a person against whom a proceeding under section 110, Cr. P. C, is contemplated or pending, the legislature was anxious to see that this power under section 41 (2) granted to a police official is not misused. The legislature, therefore, in their wisdom, inserted section 50 in the Code of Criminal Procedure. Section 50 is a new section which had no place in the old Code of Criminal Procedure, 1898. It reads as under: - "50, Person arrested to be informed of grounds of arrest and of right to bail. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. "
We are here concerned with the provisions of sub-section (2) of the Code of Criminal Procedure. It lays down in explicit terms that every person arrested without a warrant should be informed of the grounds of his arrest and if is not arrested for the commission of a non-bailable offence, he should be informed of his right to be released on bail. If he furnishes the bail bonds as required by the police officer, the subject is entitled to be released on bail. The use of the word 'shall' in sub-sec. (2) makes the provisions mandatory. It was the anxiety of the legislature that the powers granted to a police officer under sub-section (2) of section 41 be not misused that the mandatory provisions for bail was made in sub sec. (2) of sec. 50, Cr. P. C. Thus, sec. 50 brings the law in conformity with the provisions of Articles 21 and 22 of the Constitution. In other words, sec. 50 is a corollary of the right of every citizen to be free from arrest guaranteed by these articles. The personal liberty of a citizen is inviolable and if it is to be curtailed or invaded such as invation and curtailment must be strictly in accordance with the provisions of law. The provisions of sub section (2) of section 50, Cr. P. C. contains a valuable right and a non-performance of its mandatory provisions amounts to violation to the procedure established by law. Thus, where a person is arrested and his arrest is not in connection with the commission of a non-bailable offence, he must be released on bail by the police officer if the arrested person so wishes and arranges for sureties on his behalf.
The provisions of section 50 got further strength from the provisions of section 436, Cr. P. C. which relates to bail. Sub section (1) of section 436, Cr. P. C. again lays down in explicit terms that when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by a officer incharge of a Police Station and if he is prepared at any time while in custody of such officer to give bail, such person shall be released on bail. These provisions enshrined in sub-sec. (1) of sec. 436, Cr. P. C. are mandatory and no exception can be taken to them. The first proviso to this sub section further lays down that a person not accused of a non-bailable offence, if arrested, may be released even on his executing a personal bond without sureties. Here again, the emphasis is on the liberty of the citizen that in petty matters, such a person against whom the allegation of the commission of a non-bailable offence is not there, can be released on his personal bond. The provisions of sub-section (1) applies with full force to a person arrested under section 41 (2) of the Code of Criminal Procedure. Thus, a person arrested under sub-section (2) of section 41 is entitled to be released on bail. The intention of the law is that in such a case, namely where a person is arrested under section 41 (2), he should be set at liberty if he is able to arrange for sureties. In a fit and proper case, he can be also released on his personal bond.