Rama Kant vs State

Kamleshwar Nath, J.—These 3 writ petitions raise a common question and therefore are being disposed of by this common judgment.

The petitions are under Article 226 of the Constitution of India for issue of a writ of habeas corpus to set the Petitioners at liberty.

Ramakant was arrested on 8-8-87 at 9 P.M. by Inspector Panna Lal Gupta of Police Station Maharajganj District Rae Bareli in connection with Case Crime No. 119 of 1987 u/s 302 IPC of that Police Station. The Petitioner''s case is that the arresting officer did not comply with the provisions of Article 22(1) of the Constitution of India or of Section 50(1) of the Code of Criminal Procedure, inasmuch as he had not been informed of the grounds of his arrest, nor of the particulars of the offence for which he was wanted.

Petitioner Mohan Lal was arrested on 18-7-1987 at 9 P.M. by S.I. Zahooru Haque of Police Station Bhadokhar, Disirict Rae Bareli in connection with Case Crime No. 148 of 1987 u/s 302 IPC.

Shamsher Bahadur Singh alias Chhuttan Singh was arrested on 21-3-1987 at about 1 A.M. by S.I.P.N. Singh of Police Station Colonelganj District Gonda in connection with Case Crime No. 173 of 1987 u/s 302 IPC.

Both, Mohan Lal and Shamsher Bahadur Singh have pleaded, like Rama Kant, that their detention is invalid because the arresting officers did not comply with the provisions of Article 22(1) of the Constitution of India and Section 50(1) of the Code of Criminal Procedure.

In the case of Rama Kant, the affidavit was filed by his father Sharda Prasad Tewari stating that Rama Kant had not been informed of the grounds of his arrest, nor had been furnished with full particulars of the offence for which he was wanted. The arresting Officer Panna Lal Gupta filed a counter affidavit in which he stated that he had informed the Petitioner about the particulars of the offence. He also filed copy of the general diary entry, Annexure CA-1. The statement in the Counter Affidavit was specifically denied by the Petitioner Rama Kant himself in his Rejoinder Affidavit.

In the case of Mohan Lal, the affidavit was filed by his brother-in-law Shitla Prasad stating that the Petitioner had not been informed of the grounds of arrest, nor furnished with the particulars of the offence for which he was arrested. Counter Affidavit filed by Zahoorul Haque, the arresting officer mentioned that he had informed about these particulars, a copy of the case diary was filed by Zahoorul Haque in this regard. The statement of Zahoorul Haque was rebutted by the Petitioner himself in his rejoinder affidavit.

In the case of Shamsher Bahadur Singh, the affidavit was filed by his next friend and pairokar Pradeep Kumar Singh stating that the Petitioner had not been informed of the grounds of his arrest, nor the particulars of the offence were communicated to him. The Investigating Officer P.N. Singh filed a counter affidavit in which he stated that he had informed the Petitioner of the grounds; he also filed the copies of the entries in the general diary, the memo of recovery of a gun from the Petitioner and of the entry in the case diary. The rejoinder affidavit in rebuttal of the averments made by P.N. Singh was made by the Petitioner himself.

It is not disputed that the constitutional requirement under Article 22(1) of the Constitution of India is that as soon as may be, after arrest the person who is arrested, shall be informed of the grounds of arrest and that u/s 50(1) of the Code of Criminal Procedure the arresting police officer is bound to "forthwith communicate, to the arrested person the full particulars of the offence for which he is arrested or other grounds for such arrest". The question for determination in each of the cases is whether the Petitioner was informed of the grounds and furnished with the full particulars.

It is plain enough that so far as the testimony is concerned, there is oath against oath. The question is as to what should be the criterion/test of judging as to which of the 2 cross--versions is correct. The contention of the learned Counsel for the Petitioners is that through a long succession of cases decided by this Court, it has been expected that the arresting officer would have an entry made in the general diary of the Police Station in which he must indicate that the person arrested was informed of the grounds of arrest and furnished full particulars of the offence. The contention of the learned Assistant Government Advocate is that there is no statutory requirement of such particulars being recorded in the general diary of the Police Station although the fact of arrest has to be recorded in the general diary. He says that the functions of the arresting officer in these cases were started by the first information reports which obviously were made before the arrests were made, and that the failure of the Petitioners to raise these grounds in their bail applications adds strength to the averments of the Police Officer in this regard.

The learned Counsel for the Petitioners refers to Section 44 of the Police Act, which requires every officer-in-charge of a police station to keep a general diary in a form prescribed by the State Government and says that it is the duty of the officer-in-charge "to record therein all complaints and charges preferred, the names of all persons arrested, the names of complainants, the offences charged against them, the weapons or property that shall have been taken from the possession or otherwise, and the names of the witnesses who shall have been examined." He says that the statutory requirement is that not only the names of the persons arrested have to be recorded but also the offences charged against them have to be entered therein. The statement of the charge, according to the learned Counsel, would include a statement that the arrested person was also informed of the charge.

Strictly speaking, the terminology of the section does not expressly mention that although the offence charged has to be set out in the general diary, it is also necessary to mention that the offence charged has been communicated to the arrested person. The learned Counsel for the Petitioners however contends that the provisions of para 295 of the U.P. Police Regulations show that among the various purposes which the general diary u/s 44 of the Police Act is expected to serve, is also to contain information regarding the action taken by the Police on the arrest of a person. Reliance is placed upon Clauses (5) and (14) of Paragraph 295 of the Police Regulations which run as follows:

The following matters must be recorded in the general diary:

(5) Reports of the performance of all duties, e.g., beat duty, process nerving, inspection and investigation.

(14) Reports of all occurrences which under the law have to be reported or which may require action on the part of the police....

It is urged by the learned Counsel for the Petitioners that among the various duties of a police officer conducting investigation of a crime, which includes arrest of the accused, is the duty of informing the arrested accused of the grounds of arrest and of full particulars of the offence for which he is arrested. It is not disputed that the obligations under Article 22(1) of the Constitution and 50(1) of the Code of Criminal Procedure are in the nature of duties to be performed in the course of an investigation. Clause (5) of Para 295 clearly requires a report of performance of such duties in the general diary.

Clause (14) of Regulation 295 does not seem to cover the point under consideration. That clause requires the reports specified therein to be recorded in the general diary. Those are reports of occurrences which require action on the part of the police. The discharge of the function by a police officer is not an ''occurrence'' within the meaning of the clause. Occurrences within the clause are those which have to be reported under the law or which require action on the part of the police; they do not include action taken by the police. The record of action taken on the reports of occurrences is to be made under Clause (15) of Regulation 295. We are of the opinion therefore that Clause (14) of Regulation 195 does not envisage the recording of the performance of the Police Officer in connection with the arrest of a person.

Nevertheless Clause (5) clearly requires that the performance of all duties, in the course of investigation, among other duties, must be recorded in the general diary and that would include the obligation to record the fact that a person arrested was informed of the grounds of arrest and was communicated the particulars of the offence for which he was arrested.

The learned Assistant Government Advocate has referred to para 153 of the U.P. Police Regulations and contends that all that the police officer is required to do after the arrest of a person, is to enquire from the arrested person whether he had any complaint of ill-treatment by the police and for that purpose must record the complaint in the case diary in question and answer form. This requirement does not do away with the requirement of para 295 Clause (5) of U.P. Police Regulations.

From a practical point of view and on a reasonable consideration of the requirements of fairness and justice, the liberty of the citizen is not to be left at the mercy of a bare oral assertion of the police officer. There is not much to choose between oral versions of parties who are interested in their own case. The Petitioner would always say orally that he has not been informed of the grounds of arrest, nor the particulars of the offence were communicated to him; the arresting police officer would always be interested in saying that he had done so. It would not be fair to disbelieve the version of the accused simply because he is an accused or accept the version of a police officer simply because he is a police officer acting in discharge of his duties. The laws of this country recognise equality before itself, and the courts must judge independently. A written record, in such situations, must be the determining factor. The object of fairness and justice would be served better by adopting a particular construction of Section 44 of the Police Act of 1861 rather than a purely literal interpretation thereof, particularly in view of the provisions of Clause (5) of Regulation 295 of the U.P. Police Regulations. As already indicated, Section 44 of the Police Act requires that the general diary must contain the names of all persons arrested, the offences charged against them, the weapons or the property taken from their possession etc. Between the requirement of recording the names of arrested persons and the particulars of the offences charged against them, it would be reasonable to read further requirement that the fact of informing the arrested persons of the grounds of arrest and of the particulars of the charges for which arrest is made, be also entered in the general diary of the Police Station.

The case law on which the learned Counsel for the Petitioners have placed reliance, also indicate the same direction. In the case of Subhash Bhandari v. State of U.P. 1986 AWC 1049 : 1986 ACR 563 reliance had been made on behalf of the State on the entry in the general diary on the question whether the arresting officer had informed the Petitioner of the grounds of arrest and had communicated the full particulars of the offences for which be was arrested. The contents of the general diary as interpreted, were found not to constitute the giving of information, and the furnishing of the full particulars as required by the law. The case of Ram Chandra alias Munai v. Superintendent Jail, Lucknow 1982 LLJ 160 was noticed in Subhash Bbandari''s case (supra) and it was found that the general diary there did not contain any entry indicating that the arresting Sub-Inspector forthwith communicated to the accused either the particulars of the offence or the grounds of arrest. The custody of the accused was held to be illegal.

The law has stepped a little further. The requirements of Article 22(1) of the Constitution of India have been interpreted by this Court as far back as 1965 in the case of Vimal Kishore v. State of U.P. AIR 1965 All 56 to signify that although it is not necessary for the authorities to furnish full details of the offence but the information given to the arrested person should be sufficient enough to enable him to understand why he has been arrested and to that end should be somewhat similar to the charge framed by the Court for the trial of a case. The view taken in Vimal Kishore''s case was reiterated in the case of Gyan Chandra Gaur v. State of U.P. decided by this Court on 19th October, 1973 as noticed in para 27 of Subhash Bhandari''s case (supra). In the case of Ashok Kumar Singh v. State of U.P. 1987 LLJ 273, it has been held that the constitutional flaw for non--compliance of Article 22(1) is not capable of being rectified as an irregularity in procedure.

The failure to record the names of the witnesses examined u/s 161 Code of Criminal Procedure in the course of the investigation was held by the Supreme Court to be an infirmity in investigation in the case of Subhash v. State of U.P. 1976 SCC 483 in view of provisions of Section 44 of the Police Act.

On a careful consideration of the matters, we are of the opinion that it would be a fair, reasonable and wholesome interpretation of the provisions of Section 44 of Police Act, 1861 read with Clause (5) of para 295 of the Police Regulations to expect that in making the general diary entry after the arrest of a person, the arresting officer will cause to be recorded in the general diary of the Police Station not only the names of the persons arrested, weapons or property taken from their possession but also the fact that the arrested persons had been informed of the grounds of arrest and that the full particulars of the offences with which they are charged, were communicated. In the absence of such an entry in the general diary, it would be reasonable for the court not to believe a bare oral statement contained in the counter affidavit vis-a-vis assertions to the contrary in the affidavit and rejoinder affidavit of the Petitioners.

The General diary entry in Rama Kant''s case contained in Annexure CA-1 only mentioned that Rama Kant had been arrested according to procedure. This does not satisfy the requirements of Article 22(1) of the Constitution or Section 50(1) of the Code of Criminal Procedure. Assuming that the Petitioner did not raise this point in his application for bail before the lower court, the constitutional and legal obligation on the part of the arresting officer to comply with the law as indicated above cannot be done away with.

In the case of Mohan Lal, there is no entry in the general diary at all of Sri Zahoorul-Haque informing the Petitioner of the grounds of his arrest or communicating to him the particulars of the offences for which he was arrested. There is only an entry in the case diary, annexure CA-1 which bears a sentence that the reason of arrest for the offence u/s 302 IPC was disclosed to the Petitioner. As held in the case of Subhash Bbandari (supra) that bare sentence does not satisfy the requirements of Article 22(1) of the Constitution and Section 50(1) of the Code of Criminal Procedure.

In the case of Shamsher Bahadur Singh, the general diary entry, annexure-2 mentions the arrest of the Petitioner but it makes no mention whatsover that the Petitioner was informed of the grounds of arrest.

The learned Assistant Government Advocate relied upon entries in the case diary, Annexure S-1 which include a copy of the memo of recovery of gun from the Petitioner in connection with case Crime No. 173 of 1987, u/s 302 IPC for which the Petitioner was wanted. It says that the memo was read over and signatures of witnesses were taken. The memo of course, does not mention that the Petitioner had been informed of the grounds of arrest or has been furnished with full particulars of the offences; nevertheless it informed the Petitioner that he was arrested in case Crime No. 173 of 1987 u/s 302 IPC. That might not have been sufficient by itself, but emphasis has been laid by the learned Assistant Government Advocate further on the statement of the accused Petitioner recorded in the case diary, Annexure S-1 u/s 161 Code of Criminal procedure. According to the record, the Petitioner, on being questioned, denied having committed the offence and added that he would not make any statement without the advice of his Lawyer. The learned Assistant Government Advocate says that the interrogation of the Petitioner incorporated in the case diary, coupled with contents of recovery memo, establish that the grounds of the Petitioner''s arrest and the particulars of the offence were communicated to the Petitioner. This contention is not without substance. We must make it clear that while an entry in the General Diary indicating compliance of the provisions of Article 22(1) of the Constitution and Section 50(1) Code of Criminal Procedure is a strong piece of evidence to prove that the requisite compliance was made, it is not the only evidence to prove it. It is open to the State to prove by other material also that the requisite compliance was made. Is is a matter of appreciation of the evidence on record in each case. It is therefore open to the court to uphold the compliance of the provisions of Article 22(1) of the Constitution and Section 50(1) of the Code of Criminal Procedure on the contents of the recovery memo coupled with the record of the statement of Shamshar Bahadur u/s 161 Code of Criminal Procedure in the case diary. We are of the opinion that these materials in the case of Shamsher Bahadur Singh are good enough to lend credence to the counter affidavit of the arresting officer, P.N. Singh S.I., that he had informed the Petitioner of the grounds of arrest and had also communicated the full particulars of the offence.

On an over all consideration of the material in the writ petition as Shamsher Bahadur Singh, we are satisfied that the requirements of Article 22(1) of the Constitution of India and Section 50(1) of the Code of Criminal Procedure were complied with, and his petition must fail.

The detention of Petitioners Rama Kant and Mohan Lal, in the circumstances, cannot be sustained, but at the same time we are of the opinion that the competent police authorities cannot be prevented from re-arresting the Petitioners in these very cases and comply with the provisions of the law.

Writ Petition Nos. 8077 of 1987 and 8183 of 1987 are allowed. The Petitioners Rama Kant and Mohan Lal are directed to be set at liberty forthwith unless wanted in any other case. It will nevertheless be open to the competent authorities of the Police to re-arrest them in accordance with law in connection with their respective crime and comply with the requirements of law.

Writ Petition No. 7127 of 1987 of Shamsher Bahadur Singh alias Chhuttan Singh is dismissed. Parties shall bear their costs.