L.S.MEHTA, J. - (1.) THIS is a revision -petition taken against the order of learned Sessions Judge, Bikaner, dated July 28, 1971.
(2.) THE brief facts of this case are that Pema Ram Jat, son of Dungar Ram, resident of Malasar, lodged a complaint with the police station, Jamsar, with the averments that Luna Ram and the members of his family were antagonistic with him. Litigation had proceeded and prolonged in between them. Luna Ram and his party -men were threatening him with unpropitious consequences. At about 9 a.m. on January 10, 1971, he was on his field Soon after Ram Lal, Luna Ram, Ganga Ram, Mohan Lal and Hanwat Ram arrived there. They were armed with lathis, with projecting prongs and threatened him. Thereupon he raised an alarm, which attracted Uma Ram and others on the spot. Because of this eventually, he apprehended that there was danger to his life and that possibly some heinous crime was likely to visit. He, therefore, moved the local police for initiating proceedings under Section 107, Cr. P.C. The police inquired into the matter and made a complaint in the court of Sub -Divisional Magistrate, Bikaner (North), recommending that proceedings under Section 107/.51, Cr. P.C. be taken. Learned Sub -Divisional Magistrate, Bikaner, issued notices under Section 112, Cr. P.C. calling upon Luna Ram and others to show cause why they should not be bound over in a sum of Rs. 2000/ -, and to furnish a surety in the like amount to keep the peace for a period of one year. The petitioners felt aggrieved by the above order, dated January 13, 1971, and approached the Court of Learned Sessions Judge, Bikaner, through a revision -application. That petition was dismissed by learned Sessions Judge, Bikaner: vide his judgment, dated July 13, 1971. Hence this revision. The contention of learned Counsel for the petitioner is that the order of learned Sub -Divisional Magistrate, Bikaner, dated January 13, 1971, is not legal The petitioners, namely, Luna Ram and Ganga Ram, were produced before learned Sub -Divisional Magistrate by the police on January 15, 1971. At that time it was incumbent on the Magistrate to draw up an order under Section 112, Cr. P.C. He could not have sent the above named 2 persons, to jail without doing so. Learned Counsel further submitted that the Magistrate could not have issued bailable warrants in a sum of Rs. 5000/ -, against' the rest of the petitioners on January 15, 1971, without first drawing up an order under Section 112, Cr. P.C. which is of a mandatory character. Learned Magistrate realised the by gone error, counsel adds, and then he rectified it by drawing up an order under Section 112, Cr. P.C. The very basis of the impugned order is irrational and, therefore, it cannot subsist. Learned Deputy Government Advocate submitted that applicants Luna Ram and Ganga Ram, were arrested by the police under Section 151, Cr. P.C. and, therefore, their arrest was legal and when they were produced before the Magistrate on January 15, 1971 they could have been sent to jail as they failed to furbish sureties then and there. Learned State counsel further argued that as soon as the Magistrate realised that the order under Section 112, Cr. P.C. had not been read out to the petitioners he mended the laxity and drew up a proper order on January 28, 1971, and then started inquiry in accordance with the provisions of Section 117, Cr. P.C.
(3.) THE first question that arises for decision is whether the police could arrest the petitioners under Section 107, read with Section 151, Cr. P.C. Section 151, Cr. P.C. says: A police officer knowing of a design to commit any cognizable offence may arrest without order from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. The power conferred by the provision impinges on the liberty of an individual and, therefore, there should be strict compliance with the requirements of the law. Section 107, Cr. P.C. does not deal with any punishment. A person proceeded against under that section cannot be said to be prosecuted for an offence. What is required under Section 151, Cr. P.C. is that the police officer must know that the person to be arrested is designing to commit some cognizable crime. A mere apprehension that he may commit a crime is not enough. Apprehension is not the same thing as knowledge. The former is a mere feeling and the latter is a positive conclusion. Again, the possibility of the commission of' a cognizable offence does not mean that he is designing to commit a crime. In this case there is nothing on the record to show that it appeared to the police officer that commission of the offence could not otherwise be prevented. It is thus apparent that the arrest of Luna Ram and Ganga Ram under Section 107, read with Section 151, Cr. P.C. was not in accordance with law. ;