STATE OF MAHARASHTRA Vs. DATTATRAYA BALWANT UPADHYAYA AND OTHERS

JUDGEMENT

(1.) The respondents in these cases were arrested by the Yeotmal Police under section 151 of the New Code Criminal Procedure 1973 referred to hereinafter as the Code. Thereafter so far as respondent Dattatraya Balwant Upadhaya, in Criminal Revision Application No. 35 of 1976, is concerned, he was produced before the Judicial Magistrate, First Class, Yeotmal on 6th Jan. 1976 and the respondents in Criminal Revision Application No. 38 of 1976 were produced before him on 4th Jan. 1976, along with an application stating that all these persons were workers of a banned organisation known as Rashtriya Swayamsevak Sangh and Jan Sangh, a political party. It was further alleged in the application for remand that they had decided to arrange a procession in the city to give slogans against the lawfully established Government. According to the State, they had also made arrangements for distribution of pamphlets containing the material criticising the policy of the Government and thereby to cause a breach of peace. According to the State these activities of the respondents amounted to offences under the Defence of India Rules and, therefore, with an intention to prevent commission of these cognizable offences they were arrested under section 151 of the Code and an application for remand was filed before the Judicial Magistrate, First Class, Yeotmal.

(2.) It appears from the record that so far as Criminal Revision Application No. 38 of 1976 is concerned, initially the Magistrate granted remand till 17th Jan. 1976, but as he was not satisfied with the reasons given by the police about the legality and propriety of the detention of the arrested persons, the Judicial Magistrate, First Class, asked the Police Prosecutor to explain how the persons arrested under section 151 of the Code could be detained in a magisterial custody. So far as Criminal Revision Application No. 35 of 1976 is concerned, on 6th Jan. 1976 itself the Magistrate rejected the application for grant of remand on the ground that such an application Was not maintainable under section 167 of the Code. In the case out of which Criminal Revision Application No. 38 of 1976 arises, the Judicial Magistrate passed a speaking order and ultimately came to the conclusion that in a case where a person is arrested under section 151 of the Code, the Magistrate has no powers to remand a person to any custody under section 167 of the Code. In the view which he had taken he directed the release of all the persons forthwith. It is these orders which are challenged in these revision applications by the State Government.

(3.) Shri Badar, the learned Assistant Government Pleader, contended before me that the Judicial Magistrate, First Class, committed an error in holding that the provisions of section 167 of the Code are not applicable to a case where a person is arrested under section 151 of the Code. According to Shri Badar, the provisions of section 151 authorise a police officer to arrest a person so as to prevent commission of cognisable offences. Sub-section (2) of section 151 lays down that no person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of the Code or of any other law for the time being in force. According to Shri Badar, it is not the law that as soon as the period of 24 hours lapses a person is entitled to be set at liberty forthwith. In a given case if the police officer thinks that his further detention is required under any of the provisions of the Code or any other law for the time being in force, then such a detention could be continued after obtaining necessary orders from the Judicial Magistrate. According to him, the view taken by the learned Judicial Magistrate, First Class, that in no case the provisions of section 167 of the Code will apply to such an arrest is obviously illegal. In support of his contentions, Shri Badar has relied upon two decisions of Kerala High Court in Chakkappan Vs. State of Kerala, AIR 1960 Ker. 297 and A.K. Gopalan Vs. State of Kerala, AIR 1962 Ker. 215 and a decision of Allahabad High Court in Radhey Shyam Vs. State, 1965 (2) Cri. LJ 271.