B. L. Yadav, J. - (1.) THE present petition under Articles 226/227 of the Constitution of India has been filed by the petitioners seeking a relief for a writ of Mandamus commanding the respondents not to arrest the petitioners or to initiate the proceedings under Sections 82/83 of the Code of Criminal Procedure (hereinafter referred to as the Code) in connection with Crime No. 385 of 1985, P. S. Rohania, District Varanasi.
(2.) THE facts of the case lie in a narrow compass. One Sanjay Kumar Verma, a student of B. A. Part II of the Banaras Hindu University, was missing,since the night of 21/22nd December, 1985 and a report was lodged by his father Vijai Kumar Verma about his disappearance ton 22-12-1985 at P. S. Deshaswamedh, Varanasi. On the same day the village Chowkidar Kallu Ram also lodged a report (Annexure-A to the Petition) stating that a dead body of an unknown person was lying near the Katia of village Karsara Adalpura, Varanasi. Another report was lodged on 23-12-85 by the father of the deceased Sanjay Kumar Verma at P. S. Deshaswamedh, Varanasi (Annexure-B to the petition). In that report it was stated that his son Sanjay Kumar Verma was missing from the meating of the students held in the night of 21-12-85 and he was last seen with Pappu @ Sunil Dubey and one Ganesh Dubey. THE deceased had taken his tea at the tea shop of one Muunu and there he kept his cycle and thereafter disappeared with the aforesaid Pappu and Ganesh Dubey. It was prayed that legal proceedings may be initiated. On these reports the police started investigation and prepared an inquest report and sent the dead body for post-mortem examination. By that time the dead body could not be identified. A copy of the General Diary of 23-12-85 has been filed as Annexure-C to the petition. One Sunil Kumar Dubey @ Pappu was arrested on 25-12-85 on the basis of the second report lodged by the father of the deceased. According to the allegations made in paragraph 7 onwards of the petition it was alleged that the petitioners have no connection with the alleged crime, but the police wants to harass them and create some evidence against them and ultimately the petitioners apprehend that they would be implicated as accused and proceedings under Sections 82/83 of the Code could be initiated against them and they would be sent to Jail, The present petition was accordingly filed for issuing a writ of Mandamus commanding the respondents not to arrest the petitioners or to initiate proceedings under Sections 82/83 of the Code. At the admission stage a counter affidavit was filed by Sri Surendra Pandey, Station Officer who was deputed to investigate the present case and in para 3 (b) of the counter affidavit it was alleged that on 15-12-85 a quarrel has taken place between the deceased and Anurag Kumar Barnwal, petitioner no. 1 in the compound of the Vishwanath Temple situate in the campus of the Banaras Hindu University. In that quarrel it was alleged that the deceased had given four slaps to Anurag Kumar Barnwal, petitioner no. 1 and the latter had given a threat of dire consequences. In para 3 (g) of the counter affidavit it has been stated that the deceased was taken on a scooter later on by Sunil Kumar Dubey @ Pappu assuring a compromise to be arrived at in the quarrel that had taken place on 15-12-85 and after some time the deceased and Pappu @ Sunil Kumar Dubey boarded a jeep where four persons were already sitting. The deceased and Pappu @ Sunil Kumar Dubey also occupied their seats in the same jeep which proceeded at a little distance. It was further stated that the jeep came to the tea shop as the accused persons knew that the deceased was sitting there. In para 9 of the counter affidavit replying para 7 of the writ petition it has been stated that there was cogent and clear evidence to connect the petitioners with the crime and there was no question of any pressure. The investigation was still in progress before the interim stay was obtained from this Court on 30-12-85, whereby the arrest of the petitioners was stayed and the same order was extended till the disposal of the writ petition.
(3.) THIS petition came up for admission before us. The Counter and rejoinder affidavits have been exchanged between parties. Sri V. C. Misra appearing for the petitioners urged that there was no material disclosing the offence on the basis of which the petitioners could be arrested. Even on the basis of material collected so far no reasonable suspicion arises nor the petitioners could be connected with the aforesaid crime. It was accordingly urged that the proceedings for investigation may be quashed and the respondents may be directed not to arrest the petitioners in the aforesaid crime. It was further urged that any police officer may without an order from a Magistrate and without a warrant arrest any person in view of the circumstances specified in Section 41 of the Code only when some credible information has been received or a reasonable suspicion exists of the accused having been concerned in any cognizable offence. He urged that in view of Section 50 of the Lode, grounds of arrest have to be communicated with particulars of the offence for which the person is arrested without warrant. Section 157 of the Code was also referred which provides procedure for investigation. Learned counsel for the petitioners strongly placed reliance on State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949, S. N. Sharma v. Bipen Kumar Tewari, AIR 1970 SC 786 and In re Appaswamy Mudali, AIR 1984 Mad, 555.;