- (1.) K. L. Sharma, J. This is a writ petition under Article 226 of the Constitution of India for the issue of a writ or direction in the nature of habeas corpus and for quashing the petitioner's illegal detention and to set him at liberty.
(2.) LEARNED counsel for the petitioner has mainly contended that the petitioner was illegally arrested and detained without complying with the mandatory provisions of Section 50 (1) of the Code of Criminal Procedure, 1973 and against the provisions of Article 22 (I) of the Constitution of India. This petition has been supported by an affidavit of petitioner's wife Smt. Maya Srivastava wherein she had stated that at about 7. 00 p. m. on 7-10-1991 the petitioner was illegally taken from his house to the Police Station Wazirganj without disclosing any reason or ground for arrest. The writ petition has been contested by the Govt. Advocate (Public Prosecutor for the State) who also filed counter affidavit of Sri S. R. Singh, Inspector Incharge Police Station, Wazirganj, Lucknow. Mr. S. R. Singh arresting officer has in paragraph 6 of his short counter affidavit, dated 24-10-1991 stated as follows: "6. That the deponent duly informed the reasons to Ram Chandra Srivastava that since he is wanted in case Crime No. 318/91 under Section 302/394 I. P. C. , Police Station, Wazirganj, Lucknow with respect to the murder of Smt. Rampa and Kamla which even he duly accepted. Learned Advocate also informed the Court that the petitioner is since in Jail and he has not moved any bail application so far. Learned counsel for the petition cited the following cases in support of his contention: (i) 1991 Lucknow Law Journal page 230 - Hazari Lal v. State of U. P. and others. (ii) 1976 Criminal Law Journal page 1320 - Madan Gopal v. The State. (iii) 1987 Lucknow Criminal Reports page 307 - Ashok Kumar Singh v. State of Uttar Pradesh. (iv) 1986 Lucknow Law Journal page 209 - Shanna alias Lulla v. State of Uttar Pradesh and others. (v) 1982 Lucknow Law Journal page 162 - Ram Chandra alias Munai v. Superintendent Central Jail, Naini and others. (vi) 1988 Lucknow Law Journal page 118 - Rama Kant, Mohanlaland Shamsher Bahadur Singh alias Chhuttan Singh v. State.
(3.) THERE is no denial of the principle of law that if the provisions of Section 50 (1) of the Code of Criminal Procedure and Article 22 (1) of the Constitution of India are not complied with the arrest and detention of the detenu shall be illegal. But the application of this principle of law would be seen in the light of the facts of each and every case. In the present case the facts deposed by the petitioner's wife through her affidavit and supplementary affidavit about the communication or non communication of the reasons of arrest and detention could not be within her knowledge because at the time and the place where the petitioner was arrested by the Inspector Incharge Police Station Wazirganj, she was not physically present. Her averment that on 7-10-1991 at about 7. 00 p. m. her husband was taken away by the Police from her house has been clearly denied by the arresting officer Sri S. B. Singh through his affidavit and also refused by the recordings of the F. I. R. and the entries in the General Diary. The arresting officer was competent person to speak about the facts of communication or non-communication for the arrest of the petitioner at the time of his arrest. Therefore, his averment supported by the entries of the General Diary, dated 9th October, 1991, are worthy of belief. The averment made by the petitioner's wife is not correct and cannot be relied upon. The petitioner was actually arrested on 9-10-1991 at about 1. 30 p. m. at Bahraich Bus Station in Case Crime No. 318 of 1991 under Section 302/394, I. P. C. , P. S. Wazirganj Lucknow with respect to the murder of Smt. Rampa and Kamla after informing reasons of arrest to the petitioner and he was not arrested from his house No. 159/89, Subhash Nagar, P. S. Wazirganj, Lucknow where Smt. Maya Srivastava resided. The statement of the arresting officer that the petitioner was informed of the reasons of arrest at the time of arrest supported by his affidavit and entries of General Diary satisfies the requirement of Section 50 (1) Cr. P. C. and Article 22 (1) of the Constitution of India.;