Palok Basu, J. - (1.) IN all the aforesaid four cases one of the points argued was that at the time of arrest of the petitioner in each case the ground of arrest and full particulars regarding it were not disclosed and, therefore, Article 22 (1) of the Constitution of INdia stood violated. The other question in all the four cases was whether the petitioner was detained for a period more than necessary and in some beyond 24 hours and, therefore, Article 22 (2) of the Constitution of INdia was violated On these two grounds it was argued that the continued detention of the petitioner in each case was illegal. Some questions of fact were raised relating to each case which shall be dealt with at the relevant place. It may be noted here that in all the cases counter affidavits by the relevant opposite parties have been filed to which a rejoinder has also been filed by the petitioner and, therefore, as prayed by learned counsel for the parties, all the petitions are being finally disposed at the admission stage. Sri R. P. Singh, Sri S. V. Goswami, Sri Pretn Prakash Yadav and Sri D. S. Misra have been heard on behalf of the petitioners in each case respectively while Sri Shivaji Misra has appeared on behalf of the opposite parties, all of whom have been heard at sufficient length.
(2.) THE facts in each case as pleaded by the respective sides are noted below : (1) Sher Bahadur Singh's petition Petitioner's case (i) On 23-4-91 at 10.30 AM. Sher Bahadur Singh was arrested from the office of the C M O Sultanpur by the Sub Inspector who (i) Case crime no. 402/92 u/Sec. 364 IPC State v. Sanjay Singh and others was registered at P. S. Colonelganj. THE house of the told him that the petitioner is in custody and took him to Allahabad on 23-4-92 and lodged him at the Police Station Colonelganj, Allahabad. (ii) C.M.O. wrote a letter to S. P. and another to District Magistrate, Sultanpur on 23-4-92. (iii) Manish, petitioner's son, sent three telegrams to authorities on 23-4-92. (iv) Petitioner not produced before the Magistrate within 24 hours. Informant (Ravindra Pratap) of a case relating to the alleged murder of Bhupendra Kumar Singh was seen at the police station. (v) Affidavit in this case was sworn on 28-4-1992 and the affidavit was filed in the afternoon which was taken up on 29-4-1992. 2. Mahendra Bhushan's petition Petitioner's case (i) Petitioner No 2 Ashwini Kumar was arrested on 27-4-92 at 6 P.M. and taken to P.S. Colonelganj, Allahabad- (ii) Telegram sent by father Mahendra Bhushan regarding his son's arrest on 28-4-92 and again on 29-4-92 addressed to the authorities. (iii) THE accused was not shown the reasons of his arrest and was not produced before the Magistrate within 24 hours. 3. Israr Ahmad's petition Petitioner's case (1) On 8/9-4-1992 the petitioner Was arrested by the S.H.O. Dhooman- ganj. Allahabad. (2) On 9-4-92 telegram was sent to the authorities complaining about the arrest. petitioner was searched in Faizabad on 22-4-1992 but he was not traceable. THE petitioner was arrested in Mohalla Katra Allahabad at 6.10 P.M. on 27-4-92 after collecting materials against him showing his participation in murdering the abducted deceased. (ii) Denied. (iii) Telegrams and applications were not genuine and indicate peshbandi- (iv) After the arrest of the petitioner he was forwarded to the court of A.C.J.M., Allahabad for remand on 28-4-92 but as the petitioner reached the court at 4.30 P.M. by which time Magistrate had retired, therefore, he was remanded to judicial custody on 29-4-1992. (v) THE entries of arrest and challan have not been produced but a report of the Court-Moharrir allegedly dated 8-5-92 produced as Annexure-SCA 2. State's case (i) Petitioner No. 2 arrested on 30-4-92 at 10 P.M. in case Crime No. 556/92, u/Sec.460/411 IPC and from his possession Rs. 215/- were recovered which was looted property. (i) Telegrams were by way of Peshbandi. (iii) THE accused was produced within 24 hours i.e, on 1-5-92 before the Magistrate concerned who has remanded him to the Judicial Custody and he is in jail. State's case (1) Petitioner not attrested on 8/9-4-92. (2) Telegram was sent by Peshbandi. (3) On 16-4-92 notice of the present Habeas Corpus petition given to the Standing Counsel and the petition was filed in the Registry of this Court. (4) Govt. Advocate's office in the High Court Building sent a radiogram message to S.S.P about filing of Habeas Corpus petition which was collected at 5 P.M. by Palrokar of the police station Dhoo- manganj, Allahabad. 4. Zakir alias Chachu's petition Petitioner's case (i) Petitioner arrested on 24-1- 92 from his residence and had committed no offence. Petitioner was not told the grounds or particulars of his arrest. (ii) THE petitioner was produced before the Magistrate on 25-1-92 who granted police remand. (ii) On 30-1-92 judicial remand was granted . (3) Moving of the petition admitted but that was also moved on legal advice by way of Peshbandi. (4) Petitioner was actually arrested by P. S. Attarsuiya, Allahabad, on 16-4-1992 at 7.30 P.M. u/Sec.395/412 IPC along with dacoity property and u/Sec.25 (1) (a) of the Arms Act for possessing illicit arms in Crime No 171/92 who was produced on 17-4-92 before the Magistrate and judicial remand obtained Hence no violation of Article 22 of the Constitution of India or section 50 CrPC. State's case (i) THE petitioner was arrested at the spot when he fired at the police party and the country-made pistol was recovered alongwith cartridges. Smell of gun powder coming from the barrel. Case was registered u/Sec.307 IPC 7, Criminal Law (AA) Amendment Act and 25 (a) Arms Act at P. S. Kotwall Bareilly. Hence no violation of Article 22 of the Constitution or 50 CrPC. From the statement of the cases contained above the fact is apparent. The petitioners in each case have already been remanded to judicial custody when they were produced before the Magistrate concerned. The question posed was that since presently there is a valid order remanding them to judicial custody, even if there was a prior infringement either of Article 22 (1) or 22 (2) of the Constitution or section 50 of the CrPC, the said illegality stood crued and in any case has become irrelevant. It may be stated here that all the learned counsel on behalf of the petitioners have argued that once there was a breach of Article 22 of the Constitution or for that matter section 50 CrPC the subsequent order of remand passed by the Magistrate will not cure the illegality and a writ of Habeas Corpus should issue.
(3.) IT has not been disputed that the proof of compliance of Article 22 of the Constitution of India in all the cases of arrest may come only from the entries made in the general diary regarding the arrest in order to prove that the particulars and grounds of arrest were disclosed. IT is common knowledge that any accused who is arrested is likely to raise this question of non-compliance of either Article 22 of the Constitution of India of section 50 CrPC, and to always allege, howsoever incorrect it may be, that - he has not been told the grounds and particulars of the arrest. Similarly, in a matter where a citizen has been arrested without disclosing the grounds or particulars, the arresting officer in all likelihood would assert that he has complied with those requirements and the allegations to the contrary by the captive is wrong. Under the circumstances, the only proof of compliance of the aforesaid two provisions will be a complete note in the general diary as soon as the arrested person is brought to the police station concerned specifying therein the actual compliance in so many words as envisaged by the aforesaid provisions having been done. Prima facie that entry may be taken to be a proof of such compliance in absence whereof it will be difficult to deny the averments on behalf of the arrested person that there was infact no compliance of Article 22 of the Constitution of India and section 50 CrPC. Yet another question of equal importance arose. Assuming a writ of Habeas Corpus is issued directing his release after holding that there was no compliance of Article 22 (i) of the Constitution of India and/or Section 50 CrPC soon after the arrest of the person concerned even if he was remanded to judicial custody later on, how could the attendance of released accused be procured at the time of trial or committal proceedings. This question, however, will arise only when subsequently a chargesheet is filed against such an arrested person. If final report is filed after investigation nothing further requires to be done because the accused stands already released as he shall not have executed any bond/bail bonds for his appearance in any court. But if a chargesheet is filed then cognizance will be taken by the Magistrate under Section 190 CrPC and once he takes cognizance it will be followed by summons or warrant as the case may be. In the event of arrest of an accused in pursuance of such cognizance so released person shall have to appear before the Court concerned and provisions of Chapter-XXXIII CrPC relating to bail and filing of bonds will be applied.;