- (1.) K. Narayan, J. The petitioner has approached this Court for a writ of habeas corpus and a direction for his release on the ground that his detention has been illegal, unconstitutional and unwarranted by the law of procedure. He had also desired, of course, as an interim relief, his release on bail in the matter of case crime No 151 of 1994, Police Station Gosaiganj, district Faizabad, under Sections 147, 148, 307 and 302 read with Section 148, IPC.
(2.) THE facts giving rise to the present petition, are that the petitioner was arrested by Shri D. D. Shukla, Sub-Inspector of Police and Station Officer, Police Station, Gosaiganj at 2. 30 p. m. on 26-9-1994, for his alleged involve ment in a case registered at crime No. 176 of 1994, under Sections 352, 504 and 506, IPC. Since he was also said to be involved in the matter of crime No. 151 of 1994, the investigation of which had already been transferred to CBCID under some orders of the Government, an information about the arrest was sent to said office at Gorakhpur possibly on (sic) one. Consequent upon that Shri Shiv Ratan Singh, an Inspector of the said department at Gorakh pur, rushed to Gosaiganj. It may also be mentioned here that a few more persons, namely, Verendra Singh, Sesh Kumar Singh and Brahma Dutt Singh were also arrested on the same day simultaneously in the matter of case crime No, 176 of 1994 and detained for offence of case crime No. 151 of 1994. Though the matter in respect of them may be the same, the details need not be gone into hero. THE Inspector interrogated the accused persons who were already in the lock up and, thereafter, two challans were sent simultaneously on 27-9-1994 one in respect of crime No. 151 of 1994, and other in respect of crime No. 176 of 1994 by Shri Shiv Ratan Singh and Shri D. D. Shukla respectively. The contention of the petitioner has been that his detention in the matter of crime No. 151 of 1994 at the instance of Shri Shiv Ratan Singh has been illegal as the provisions of Sections 50, 167 and "267, Or. P. C. as well as of Article 22 (1) of the Constitution of India were not properly complied with and the detention has been an unauthorised one. His contention in this behalf has been that (1) he was not informed of the reasons of his arrest and deten tion in the matter of crime No. 151 of 1994 and in that way the provisions of Article 22 (1) of the Constitution were flouted and also (2) that once the detention had been made by the police of Gosaiganj, the detention at the insistence of another police officer without application of Section 267, Cr. P. C. was bad, (3) it was also contended that the remand in respect of the petitioner was not properly obtained by the Investigating Officer on subsequent dates specially on 15-11-1994, when the request was made by an unconcerned man Shri D. D. Shukla, who was neither investigating nor was Station Officer for the case crime No. 151 of 1994, (4) his contention has also been that the remand was obtained on flimsy grounds and the Magistrate had failed to care for the protection of liberty of the petitioner which was his duty, while grant ing remand. In order to properly appreciate the contentions of the petitioner in respect of validity of his arrest and detention in the matter of crime No. 151 of 1994, a brief resume of Article 22 (1) of the Constitution and of Section 50, Cr. P. C. which has been legislated as a matter of guidance and direction to the police officer, to keep the spirit of Article 22 (1) alive in their mind, will be necessary. Needless to say that ail laws of the country derive their authority from the Constitution. A reference to Article 21 of the Constitution will also be of use. Both Articles 21 and 22 find place in Part dealing with Funda mental Rights, in the Constitution. Under Article 21, the Fundamental Right of life and personal liberty have been guaranteed, of course, they have been made subject to exceptions which may be according to procedure established by law. A personal liberty is curtailed by arrest and curtailment is continued by detention. Arrest in certain cases may be a momentary affair, as the process of arrest does not last long and once the arrest is complete, the detention may or may not be continued for some time or more. Article 22 (1) guarantees 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. The matters relating to legal help can be skipped for the purposes of the present case. The main factor which has to be considered is that if the arrest has been followed by the information desired by Article 22 (1) of the Constitution and whether it has been done as soon as might be or not. The same principles were put weight under Section 50, Cr. P. C. Under Article 22 (1) the right has been enshrined and Section 50, Cr. P. C. is a man date to the police officer in deference to the provision; contained in Article 22 (1) of the Constitution.
(3.) IN order to consider the submissions in the matter of arrest and then application of Section 50, Cr. P. C. and Article 22 (1) of the Constitution facts may be arrived at. The contention of the petitioner has been that he was never told the grounds of his arrest as directed by the above said two provisions while on the contrary, the contention of the State has been that he was so explained. The question is as to whether this positive fact, of which burden could be only upon the State was at all proved. The officer, who had arrested was Sri Dhruv Dev Shukla and he has filed an affidavit wherein it was stated in para 4 that the petitioner was informed of the offence that was committed by him in detail at the time of arrest, and all facts that were con veyed were recorded in the general diary No. 15 at 17 p. m. on 26-9- 1994 when the petitioner was lodged in the lock up. It is remarkable that though Sri D. D, Shukla was himself the arresting officer, this para has been verified not from the personal knowledge or even belief but on the basis of record, that is, general diary. The contents of the general diary will be mentioned later but a more important aspect remains that it prove who has, according to the entries in the general diary conveyed the fact is unable to state about them as a matter of fact from his personal knowledge. Of course in the writ jurisdiction the matters are not to be weighed with the same measures as they are in regular trials but certain aspects cannot be lost sight of. Under Section 3 of the Evidence Act, books maintained in regular course of business can be a corroborative evidence in their nature, they cannot form a substantive piece of evidence. On the contrary in the present case, though substantive piece of evidence could have been tendered and though the who could have tendered it has not been sworn the affidavit on personal knowledge and has withheld or avoided the narration as a fact and the entry in the General Diary has been relied upon. A reference may also be made here to the decision in the case of Hajari Lal v. State, reported in 1991 LLJ 230, where it was held that a mere record in the general diary that the arrest was effected after telling the reasons, there for, was insufficient and the detention thereafter was held to be bad to the extent that the infirmity was not cured.;