Vasantha vs The Superintendent of Police, St. Thomas Mount, Chengai MGR District and Inspector of Police, Tambaram Police Station Tambaram

Mishra, J.—Petitioner herein has moved this Court for a writ in the nature of Habeas Corpus or any other appropriate writ, on allegations, inter alia, that when on 28.2.1994 at 8:30 p.m., a police party allegedly headed by some high ranking police official raided the area in Indira Colony, Tambaram, where the petitioner lives in a hut and arrested one Vempuli, her son, Murthy, wanted to know from them, who they were and in what connection they arrested Vempuli, and the police personnel ''dissatisfied with her son''s question beat him and pushed him into the van. She tried and requested them to release her son, but they refused to release her son. She has alleged that when her son was so taken in custody by the said police party, she visited Tambaram Police Station and requested the 2nd respondent herein to release him. The 2nd respondent, however told her that they (Tambaram Police) were not connected with the above raid and they had not arrested her son, Murthy. The 2nd respondent advised her to verify with other police stations and the petitioner enquired about her son with the police officials attached to (1) Chromepet Police Station; (2) Chitalapakkam Police Station; (3) Pallavaram Police Station; (4) Meenambakkam Police Station; (5) Beerkarani Police Station; (6) Selaiyur police Station; (7) Madipakkam police station; and (8) Adambakkam police Station. But her running from one police station to another, brought no specific information at all. She finally went to the office of the Director General of Police at Mylapore, and sought an enquiry and when they also did not give proper reply, she sent petitions to the Chief Minister of Tamil Nadu. Having found, however, no response from the police and the Executive, she continued her search to know finally on 7.3.1994 that the raid, in which Vempuli was arrested, was conducted by the Superintendent of Police, Chengai MGR District and that her son Murthy was taken in custody by him, i.e. the Superintendent of police, St. Thomas Mount, Chengai MGR District.

She has then alleged :-

Immediately I rushed to the office of the 1st respondent but they refused to say anything about my sort. I came to know that my son Mr. Moorthy is in the custody of the first respondent from 28.02.94. The first respondent without any valid reason has taken custody of my son Mr. Moorthy, and illegally detained him in their office at St. Thomas Mount, from 28.2.94.

The return that has been brought in on behalf of the respondents, however, has revealed that the Vellore Taluk Police received a report that on 14.02.94, at about 09:30 hours, a school going girl by name selvi Vennila, aged about 14 years, was waylaid by two unknown youths and she was relieved of her personal jewellery, although she was not molested, she did receive injuries on her neck and ears. When she raised hue and cry and some villagers assembled, the culprits took to their heels and escaped. The police arrested accordingly one Mydeen @ Ussain aged 24 years son of Musthafa, Arumbavur Post, Perambalur Taluk and (2) Rengaraj @ Suresh, aged 18 years, son of KV. Karuppiah, 6/28, TSK Nagar, Perambalur Taluk Tiruchy District, in connection with the said-robbery and on informations received in the course of investigation that one Vempuli and another Moorthy (petitioner''s son) were also involved in the said case, they came to Tambaram on 28.2.1994; but they could not apprehend either Vempuli or Moorthy, son of the petitioner herein. It is also stated in the counter as follows:

I most respectfully submit that in the early hours of 7/8.3.94 both Vembuli and Murthi were found moving under suspicious circumstances in Vellore Taluk Police Station limits and they were apprehended u/s 41(2) of the Cr.P.C. However, it came to light that these two persons were not concerned in the robbery case and as such, they were produced before the. Judicial Magistrate No. 1, Vellore for an offence u/s 64 of the MCP Act. The learned Magistrate, accepting the plea of guilt, released both these persons after admonishing them. I respectfully submit that both these persons, viz., Vembuli and Murthi are aged 19 years.

I most respectfully submit that the allegation of the petitioner that her son was kept under illegal detention from 28.2.94 is not a true statement. On the-contrary, as submitted earlier, both these persons, viz., Vembuli and Murthi were found moving under suspicious circumstances in Vellore Taluk Police Station limits on the morning of 7/8.3.94 when they were apprehended and subsequently produced before the learned Magistrate for an offence u/s 64 of the MCP Act.

Ordinarily, on such a statement of the respondents that on the date of hearing of the petition, petitioner''s son was already a free person, we would have chosen to dispose of the application as infructuous. In the instant case, however, we noticed inherent and intrinsic evidence that Vellore Taluk Police had visited Tambaram with a view to apprehend Vempuli and Moorthy (petitioner''s son) on 28.2.1994 and that Moorthy in fact was in their custody, according to them, from 7/8.3.94. When he was found moving under suspicious circumstances within the limits of Vellore Taluk Police along with Vempuli, he was apprehended u/s 41(2) (which appears to be a mistake for section 41(1)) of the Code of Criminal Procedure, produced before a Judicial Magistrate at Vellore for the alleged offence u/s 64 of the Madras City Police Act, and on such production, petitioner''s son was released after admonition, as he accepted the guilt and according to the petitioner, in illegal custody, having been picked up at Tambaram on 28.2.1994. To satisfy our conscience, accordingly we directed the production of the records from the Court of the learned Magistrate and after receipt of the records, also sent for the Magistrate to verify whether the records received in Court, were the entire records or something was not produced before us. Since we are informed that the entire records have been produced before us, we are constrained in the instant proceeding, to observe that the respondents have made an attempt to hoodwink the Court by advancing as a plea of defence the alleged arrest of the petitioner''s son on 7/8.3.94, in Vellore Taluk Police Station limits u/s 41(1) of the Code of Criminal Procedure for the alleged offence u/s 64 of the Madras City Police Act and we record with pain that a Judicial Magistrate has played into their hands in recording as a final disposal on production before him of the alleged accused arrested for the offence u/s 64 of the Madras City police Act, by an order, which is as follows:-

Accused 1 and 2 produced at 10:45 A.M. No complaint. Admonished.

Section 41(1) in Chapter V of the Code of Criminal Procedure, enumerates the circumstances and situations when any police officer may without an order from a Magistrate and without a warrant, arrest any person and enlist amongst the circumstances, arrest of a person, who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or, a reasonable suspicion exists, of his having been so concerned, or, has in his possession without lawful excuse, any implement of house-breaking, or, has been proclaimed as an offender either under the Code or by order of the State Government, or, in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing, or, who obstructs a police officer while in the execution of his duty, or, who has escaped, or, attempts to escape, from lawful custody, or, who is reasonably suspected of being a deserter from any of the Armed Forces of the Union, or, who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or, a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India, or, who, being a released convict, commits a breach of any rule, made under sub-section (5) of section 356, or, for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition, Besides this, any Officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110 of the Code, which sections in Chapter VIII of the Code are concerned mainly with the security for good behaviour from suspected persons or from habitual offenders. The police, in the District of North Arcot, in which District, Vellore Taluk Police Station falls, is governed by the Tamil Nadu District Police Act, 1859 (Act 24 of 1859), which has received by an amendment, a provision in section 54(A), which reads as follows:

The State Government may, by notification in the official Gazette extend to any town all or any of the provisions of the Madras City Police Act, 1888, mentioned in the schedule and may declare such extension to be subject to such modification as they think fit.

Section 64of the Madras City Police Act, 1888 (now known as the Tamil Nadu City Police At, 1888) is a provision for imposing penalty upon a person found between sun-set and sun-rise (1) armed with any dangerous instrument with intent to commit an offence, or, (2) having his face covered or otherwise disguised with intent to commit an offence, or (3) in any dwelling house or other building, or, on board any vessel or boat, without being able satisfactorily to account for his presence there, or, (4) lying or loitering in any bazaar, yard or public place, being a reputed thief and without being able to give a satisfactory account of himself, or, (5) having in his possession without lawful excuse any implement of housebreaking.

There is nothing in the order of the learned Magistrate to know how he was satisfied that the petitioner''s son has been guilty of any offence u/s 64 of the Tamil Nadu City Police Act. There is also nothing in his order to show that the police brought before him by way of information any act of the petitioner''s son, which attracted his arrest and punishment u/s 64 of the Tamil Nadu City Police Act. In fact, the order of the learned Magistrate as made is not a conclusion of a judicial proceeding at all. The summary procedure of trial for such offences, which we were told at the Bar, alone is attracted to a proceeding for the alleged offence, also requires compliance with a statement of the substance of accusation and the particulars of the offence and as section 251 of the Code of Criminal Procedure prescribes, the Magistrate must ask the accused whether he pleads guilty or had any defence to make. Nothing, it appears from the record, as required by law, was done in the case of the son of the petitioner, either by the police or by the learned Magistrate. We would have closed the proceeding after recording our disapproval to the conduct of the police and the Magistrate; but we have been alarmed in the instant case, for the reason of another lapse by the police as well as the learned Magistrate arid we are inclined for that reason to issue a direction to the Government of Tamil Nadu to ensure that such abuse is not done. Such an abuse of Authority is not expected of the police in the State, for, we have found as a fact that there is no notification extending the provisions of the Madras City Police Act (now known as Tamil Nadu City Police Act) by the State Government u/s 54-A of the Tamil Nadu District Police Act to the taluk of Vellore, the area in which the police allegedly picked up the petitioner''s son for the alleged offence u/s 64 of the Tamil Nadu City Police Act and produced him before a Magistrate. The whole case, i.e. the arrest of the petitioner''s son for an alleged offence u/s 64 of the Tamil Nadu City Police Act within the jurisdiction of Vellore Taluk Police Station is based on the alleged exercise of power under a notification of the State Government u/s 54-A of the Tamil Nadu District Police Act and since there is no such authority available, the entire action, is wholly without jurisdiction. We have reasons, for, the intrinsic evidence as indicated by us earlier, to think in the instant case, that the petitioner has not made any false allegation that her son was picked up by the respondents on 28.2.1994 from the Indira Nagar area in Tambaram and kept in custody somewhere until the respondents got the knowledge of the filing of the instant petition by the petitioner and when they found no way to produce the petitioner''s son before this Court, they introduced the story that the petitioner''s son and the other alleged accused Vempuli were found by the police in suspicious circumstances within the limits of Vellore Taluk Police Station, and thus, they are liable to be punished u/s 64 of the Tamil Nadu City Police Act and the learned Magistrate obviously played his role well to satisfy the respondents. The petitioner''s son has been allegedly convicted for an offence u/s 64 of the Tamil Nadu City Police Act and imposed the punishment of admonition, without any authority. The said conviction and sentence are to be ignored for all purposes and we accordingly so declare. We have no reason to think that the police personnel are not aware of the limitations, under which, they are required to function and that when they picked up the petitioner''s son for the alleged offence u/s 64 of the Tamil Nadu City Police Act, they were not aware that they had no such power. Even if we grant the benefit of their defence that the petitioner''s son was not picked up by them as alleged by the petitioner in the affidavit in the area of Indira Nagar in Tambaram, we cannot but record that they have acted in atrocious manner in arresting him under an invalid law and they deserve for the said reason a reprimand. The learned Magistrate, however, deserves, in our opinion, a punishment of censure, which should be recorded in his Service Record. On the facts of the instant case, we order as follows:-

(1) The so called conviction and the sentence of admonition u/s 64 of the Tamil Nadu City Police Act, are set aside, as if the petitioner''s son has not been found guilty of such an offence at all (relating to S.T.C. No. 968/94 on the file of Judicial Magistrate I, Vellore):

(2) We record our disapproval to the conduct of the 1st respondent - Superintendent of Police, St. Thomas Mount, Changai MGR District and the Inspector of Police, Tambaram Police Station, for not giving out the truth to the Court and we recommend for a reprimand to Thiru. P. Parasuraman, Inspector of Police, Vellore Taluk Circle. The Director General of Police, Tamil Nadu, shall accordingly intimate the Government of Tamil Nadu.

(3) We record a punishment of censure to Thiru. G. Dharmaraj, Judicial Magistrate No. 1, Vellore, and direct that the same be recorded in the Service Record of the said Magistrate.

This petition is disposed of accordingly, with the directions as above.