Madhya Pradesh High Court
Prakash Rai @ Billu Rai vs The State Of Madhya Pradesh on 3 January, 2019
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
M.Cr.C.No.45761/2018
(Prakash & Others Vs. State of Madhya Pradesh)
Indore, Dated: 03.01.2019
Shri Manoj Saxena, learned counsel for the applicants.
Ms. Bharti Lakkad, learned GA for the
respondents/State.
The applicants have filed the present application under Section 482 of the Cr.P.C seeking quashment of FIR registered against them under Section 224 & 225 of the IPC under Crime No.174/2018.
According to the prosecution, Police Constable Indarlal lodged an FIR on 26.09.2018 in a Police Station Kotwali, Ujjain to the effect that he is posted as Head Constable in Police Station Kotwali, Ujjain. He was on duty from 10:00AM to 18:00 PM at Beat Party Kanthal. He took applicant Billu, a detainue under Section 3(2) of the National Security Act, 1980 to Civil Hospital. He was examined and admitted in the Ward "C". Thereafter, he was referred to the M.Y.Hospital. At the time of shifting him to the M.Y. Hospital a crowd came there due to an accident case and accused Billu Rai fled away with the help of Akash Rai, Sunita Rai and Manish Rai by taking advantage of the said crowd. An FIR was registered under Section 224 & 225 of the IPC against all the applicants under Crime No.174/2018. The applicants have filed the present application under Section 482 of the Cr.P.C seeking quashment of FIR on the ground that there was no arrest of Billu Rai, therefore, the 2 offence under Section 224 & 225 f the IPC cannot be said to have been made out and FIR has wrongly been registered and the same is liable to be quashed.
The Government Advocate has produced the case diary by submitting that against Billu @ Prakash Rai. As many as 21 criminal cases have been registered in different Police Stations from the year 1992 to 2018. Nine times, the detention proceedings were initiated under 41(2) & 110 of IPC. The Divisional Magistrate, vide order dated 25.09.2018 in exercise of power conferred under Section 3(2) of the National Security Act, 1980 has passed the order of detention to keep him in the Central Jail, Sagar for the period of three months from the date of detention. He came to Police Station but pretended as he suffered a cardiac arrest. He was taken to the M.Y. Hospital, from there, he fled away with the help of remaining three accused persons, therefore, he was under the detention of the Police Constable and the offence has rightly been registered under Section 224 and 225 of the IPC.
Learned counsel for the petitioner submits that in entire case diary, there is no documentary evidence in respect of arrest of Billu Rai/applicant No.1 by the Police. The order of detention has been quashed by the High Court in W.P.No.23963/2018. The applicant himself went to the M.Y. Hospital for the treatment. He has not committed any offence under Section 224 & 225 of IPC and was not under the custody of Police, therefore, the FIR is liable to be quashed.
3Ms. Bharti Lakkad, learned GA for the respondent/State has argued in support of FIR by submitting that applicant No.1 was in custody of the Police but he fled away from the custody with the help of 3 accused persons, therefore, FIR has rightly been registered and it is a matter of trial and prosecution will prove the charges against the applicants. No case for quashment of FIR under Section 482 of the Cr.P.C is made out, hence the present application is liable to be dismissed.
The petitioner filed the Writ Petition No. 23963/2018 before this High Court on 04.10.2018 alleging that he is taking bed rest after undergoing angiography test since the month of March 2013 and police officers are threatening him for arrest. The proceedings of externment has been dropped against him vide order dated 08.11.2017. The petitioner did not disclose about the order of detention dated 25.09.2018. He has also not disclosed about the registration of FIR on 26.09.2018 and by suppressing all these facts, he filed writ petition alleging that the police authorities are harrasing him.
By order dated 12.10.2018 the writ petition was disposed of with an observation that in case it is found that the petitioner is involved in some criminal case, then he will be arrested after following due process of law. The order dated 12.10.2018 is reproduced below:
"The petitioner before this court has filed this present petition stating that the respondent Superintendent of Police, Ujjain is taking coercive action against the petitioner, without following the due process of law.
Learned Government Advocate has fairly stated before this court that the Superintendent of Police, Ujjain as well as Collector, Ujjain will not take any action, without 4 following the due process of law and in case it is found that the petitioner is involved in some criminal cases action will be taken only after following the due process of law.
In light of the aforesaid, the petition stands disposed of."
It is clear from the aforesaid that the order dated 26.09.2018 passed by the District Magistrate has not been set aside by this Court. Even otherwise, the FIR has been registered against the applicants.
That Sections 41 to 60A of Chapter V of the Cr.P.C deals with the "arrest" of person. The term "Arrest" is not defined either in the Cr.P.C or in any other substantive acts. The word "Arrest" when is used in its ordinary natural sense, means the apprehension or restrict or deprivation of one's personal liberty.
The Apex Court in case of Directorate of Enforcement Vs. Deepak Mahajan, reported in (1994) 3 SCC 440 has held that in every arrest there is a custody but not vice-versa and that both the words "custody" and "arrest" are not synonymous terms. Though the custody may amount to arrest in certain circumstances but not under all circumstances. The Apex Court has further held that it is not a pre-requisite condition that in all circumstances the arrest should have been effected only by the Police Officer and null else and there must necessarily be records of entry of case diary. Relevant portion of the aforesaid order are reproduced below:
"46. The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the 5 said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an occasion to go into the gamut of the meaning of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those text book sand lexicons, it has been held that :
"[T]he word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested."
47. There are various sections in Chapter V of the Code titled "Arrest of persons" of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in given situation. Section 41 deals with the power of a police officer to arrest any person without an order 17 1984 Cri LJ 134:
(1984) 15 ELT 289: 1983 MLW (Cri) 289 (Mad) from a Magistrate and without a warrant. Section 42 deals with the power of a police officer to arrest any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence and who refuses on demand "to give his name and residence or gives a name or residence which such officer has reason to believe to be false". Section 43 empowers any private person to arrest any person who in his presence commits a non- cognizable offence, or any proclaimed offender. Section 44 states that when any offence is committed in the presence of a Magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender and may thereupon subject to the provisions contained in the Code as to bail commit the offender to custody.
48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with 6 him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 1 custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi1.
49. While interpreting the expression 'in custody' within the meaning of Section 439 CrPC, Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote18 observed that: (SCC p. 563, para 9) "He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions."
50. The next vital question, in this connection that crops up for consideration is as to whether the registration of a case and the entries in the diary relating to that case as prescribed by the Code are sine qua non for a Magistrate taking into custody of a person when that person appears or surrenders or is brought before the Magistrate and whether that person should have assimilated the characteristic of "an accused of an offence" at that stage itself within the meaning of sub-section (1) of Section 167 or subsection (1) of Section 437 CrPC. 18 (1980) 2 SCC 559, 563: 1980 SCC (Cri)
51. This question is in a way answered in Gurbaksh Singh Sibbia v. State of Punjab19. While examining the scope of Section 438 of the Code in that case, Chandrachud, C.J. speaking for the Constitution Bench held that: (SCR p. 418: SCC p. 590, para 37) "The filing of a first information report is not a condition precedent to the exercise of the powers under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed."
52. The dictum laid down in that case indicates that the registration of a case and the entries of the case diary are not necessary for entertaining an application for grant of anticipatory bail, but the mere imminence of a likely arrest on a reasonable belief on an accusation of having committed a nonbailable offence, will be sufficient to invoke that provision.
53. In the backdrop of the above legal position, the conclusion that can be derived is that a Magistrate can himself arrest 7 or order any person to arrest any offender if that offender has committed an offence in his presence and within his local jurisdiction or on his appearance or surrender or is produced before him and take that person (offender) into his custody subject to the bail provisions. If a case is registered against an offender arrested by the Magistrate and a follow-up investigation is initiated, or if an investigation has emanated qua the accusations levelled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate can in exercise of the powers conferred on him by Section 167(2) keep that offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail.
54. The above deliberation leads to a derivation that to invoke Section 167(1), it is not an indispensable pre- requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee "has been guilty of an offence punishable" under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code."
In order to prove him to the guilty under the provisions Section 224 & 225 of the IPC, the prosecution is required to prove that; (i) the accused was charged or convicted, (ii) that he offered resistance or obstruction to his apprehension &
(iii) that such resistance or obstruction was illegal and that accused offered such resistance or obstruction illegally. When the offence charge is that of escape or attempt to escape from the custody, the prosecution has to prove that (i) the accused was taken into custody for commission of an offence, (ii) then such detention in custody was lawful, (iii) 8 that the accused from such custody or made an attempt to do so and accused did so intentionally.
Therefore, in view of the above, it is a matter of trial and burden is on the prosecution to prove that the accused applicant No.1 was taken into custody and he escaped from such custody with the help of three other accused persons. Prima-facie, the District Magistrate passed the order of detention and in order to execute the said order, the applicant No.1 was called in the Police Station, Kotwali, Ujjain, he came there and refused to accept the notice, thereafter, he pretended illness. He was taken to the Hospital and from there he fled away with the help of three other persons, therefore, the prosecution is required to prove charges by way of evidence before the trial Court.
At this stage, it cannot be held that no charge under Section 224 & 225 have been made out on the basis of contents of FIR and the material available with the challan, hence, M.Cr.C. is dismissed.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2019.01.07 10:43:07 +05'30'