Gauhati High Court
Kowstova Buragohain vs The State Of Assam And 2 Ors on 10 February, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/28
GAHC010221842021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/29/2021
KOWSTOVA BURAGOHAIN
S/O. SRI PRADIP BURAGOHAIN, R/O. HOUSE NO.41, BYE LANE NO.2,
WIRELESS, BELTOLA, GUWAHTI-781028.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI, KAMRUP (M), ASSAM-781001.
2:THE COMMISSIONER AND SECY.
TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPTT.
DISPUR
GUWAHATI
ASSAM-781006.
Advocate for the Petitioner : MR. A K BHUYAN
Advocate for the Respondent : MR. D NATH, SR. G.A., ASSAM
MR. M PHUKAN, PP, ASSAM Date of hearing : 17.01.2022 Date of Judgment & Order : 10.02.2022 BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR JUDGMENT & ORDER (THROUGH VIRTUAL MODE) Date : 10-02-2022 Heard Mr. A.K. Bhuyan, learned Counsel appearing for the petitioner. Also Page No.# 2/28 heard Mr. D. Nath, learned Sr. Govt. Advocate, Assam appearing for the respondents/State of Assam and on request, Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court.
2. The scanned copy of the record of G.R. Case No. 19416/2021 along with the case diary of Fatasil Ambari P.S. Case No. 817/2021 is placed before the Court in sealed cover.
RELIEF SOUGHT:
3. By this petition under Article 226 of the Constitution of India, the petitioner, who is the son of a detenue namely Shri Pradip Buragohain, is seeking direction to forthwith set his father at liberty from illegal detention and to issue a writ in the nature of Certiorari declaring the remand order, dated 17.12.2021, passed by the learned Sub-Divisional Judicial Magistrate (S), Kamrup (M) at Guwahati in connection with Fatasil Ambari P.S. Case No. 817/2021 and all its consequential remand orders as unconstitutional and illegal with adequate compensation.
PETIITONER'S GRIEVANCES:
4. The petitioner contended that his father, who was the General Secretary of the Assam Cricket Association (For short 'ACA') has been detained since the Officer-in-Charge of Fatasil Ambari Police Station picked up him on 15.12.2021 at 10.30 p.m. from Naharkatiya under Tingkhong Sub-Division, District Dibrugarh, Assam and brought to the said Police Station at Guwahati. The petitioner contended that his father was brought to Guwahati without producing him before the nearest Magistrate or obtaining a transit remand or without any intimation to his family members in violation of Sections 50 and Page No.# 3/28 50A of the Code of Criminal Procedure, 1973 (For short 'Cr.P.C.'). Thereafter, he was produced before the learned Sub-Divisional Judicial Magistrate (Sadar) [For short 'S.D.J.M. (S)'] No. 2, Kamrup (M) at Guwahati, on 17.12.2021 at 2.30 p.m., after a lapse of more than 24 hours in connection with Fatasil Ambari P.S. Case No. 817/2021 under Sections 120B/406/409/420/469/34 of the IPC registered on the basis of an F.I.R., dated 06.12.2021, without even furnishing a copy thereof to the detenue and at the time of producing before the learned S.D.J.M. (S) at Guwahati in contravention of Section 57 Cr.P.C.
5. Referring to the order, dated 17.12.2021, passed by the learned Judicial Magistrate, 1st Class, Guwahati, the petitioner contended that while producing the detenue and on enquiry by the said learned Judicial Magistrate, the police officer, who produced him, admitted that though the date in the arrest memo was shown as 16.12.2021, he was detained on 15.12.2021 at 11.15 p.m. and no step was taken to produce the detenue before the nearest Magistrate or apply for his transit remand as well as to intimate his family members about his such detention. However, the petitioner contended that the learned Judicial Magistrate in spite of the aforesaid admission of the police officer did not take any judicial notice of the aforesaid illegalities and perpetuated the illegalities by remanding him in police custody for 2(two) days. Therefore, the petitioner contended that the detention and arrest of the detenue was in complete violation of his indefeasible rights guaranteed under Articles 14, 21, 22(1), and 22(2) of the Constitution and the procedural rights, inter-alia, in Sections 50, 50A and 57 Cr.P.C.
RESPONDENT'S STAND:
6. The respondents No. 1 and 2/the State contested the writ petition by Page No.# 4/28 filing an affidavit, dated 29.12.2021, on the grounds, inter-alia, that the petition is bad for non-joinder and/or misjoinder of necessary parties as the Chief Secretary to the Govt. of Assam and Commissioner and Secretary to the Govt. of Assam are impleaded, who are only administrative heads, as respondents although the allegations are made primarily against the police officer responsible for investigation of corruption allegations in Fatasil Ambari P.S. Case No. 817/2021. The writ petition has been filed alleging illegal detention of the petitioner's father although he has been detained in judicial custody after due remand order of the Court and no application for his regular bail has been preferred and thus, evaded the effective alternative remedy. It is denied that the petitioner's father was arrested on 15.12.2021 at about 10.30 p.m. rather on 15.12.2021 at about 11.25 p.m. he on his own volition came with the police party to Guwahati co-operating in the preliminary investigation in connection with the aforesaid criminal case promising to provide vital documents in that regard which were stated to be available at his Guwahati residence. Accordingly, they reached Fatasil Ambari Police Station, Guwahati on 16.12.2021 at 10 a.m. After a thorough interrogation of him, having found prima facie incriminating materials in support of the allegations made in the F.I.R. against him, the petitioner's father was formally arrested on 16.12.2021 at 6 p.m. observing the formalities as required under Sections 50 and 57 Cr.P.C. and within 24 hours therefrom, on the following day, that is, on 17.12.2021 at 2.30 p.m., he was produced before the learned Judicial Magistrate. So far the police custody is concerned, the respondents averred that the learned Judicial Magistrate, after due consideration of the materials produced by the investigating officer, granted his police custody. Thus, the respondents have taken the firm stand that the petitioner's father's detention Page No.# 5/28 in connection with the aforenoted case was neither illegal nor in violation of the constitutional and procedural provisions in Cr.P.C. meant for the protection of legal rights of the detenue.
REPLY BY THE PETITIONER:
7. By filing an affidavit-in-reply, to the above affidavit-in-opposition of the respondent Nos. 1 and 2, the petitioner reaffirmed the contentions made in the petition and inter-alia, added that the Hon'ble Supreme Court held that in cases of habeas corpus, courts are expected to go into the merits of the case even when the petition is not properly framed or required relief is not sought.
The petitioner contended that it is no longer res integra that grounds of non- joinder/misjoinder of necessary parties or imperfect pleadings cannot be fatal in a petition seeking a writ of habeas corpus. The petitioner also stated that the respondents have sworn and filed a false and perverse affidavit in respect of non-compliance of mandatory procedural requirements aforementioned while arresting his father in connection with the said Fatasil Ambari P.S. case in the instant writ petition seeking a writ of habeas corpus amounts to contempt of Court which may be viewed seriously. In this connection, the petitioner has referred to the extract of an interview in media with police official (Anexure-6) and contents of the accused forwarding report, dated 17.12.2021 (Annexure-
7).
ARGUMENTS:
[BY THE PETITIONER]
8. Mr. A.K. Bhuyan, learned Counsel appearing for the petitioner, submitted that the petitioner's material contentions made in the writ petitions have not been specifically denied by the respondents/State in their affidavit-in-
opposition rendering his father's detention illegal. Mr. Bhuyan emphatically Page No.# 6/28 submitted that the petitioner's father's detention has been made in utter violation of Article 21 of the Constitution and the law laid by this Court in Kamal Dutta -Vs-The Union of India reported in (2016) 1 GLR 539 and further, the mandatory provisions of Cr.P.C. referred to in the petition itself. Even the learned S.D.J.M. (S), Kamrup (M) at Guwahati despite having noticed the legal lapses apparent on documents produced by the investigating officer at the time of producing the detenue on 17.12.2021 after two days of his wrongful detention since 15.12.2021 in police custody failed to exercise his duty in law to take immediate steps under Section 156(3) and Section 190(1)(C) Cr.P.C. and illegally remanded him in police custody for 2 (two) days vide order, dated 17.12.2021. In this context, Mr. Bhuyan submitted that "police custody" does not mean custody after formal arrest of a person, but as soon as he comes into the hands of a police officer as held by the High Court of Andhra Pradesh in Mrs. Iqbal Kaur Kwatra-Vs- The Dist. General of Police, Rajasthan [reported in 1996 Cri LJ 2600(DB)]. Mr. Bhuyan, learned counsel, submitted that the investigating officer while detaining the petitioner's father did not apparently follow the guidelines laid by the Hon'ble Supreme court in D.K. Basu-Vs- State of W.B. [reported in (1997) 1 SCC 416] which still stands as good law in the matter of arrest or detention of a person accused in a criminal case.
9. Mr. A.K. Bhuyan categorically submitted that it is the constitutional right of every detenue to know the reason of his detention or arrest by the police and there must be a reasonable ground for doing so. But, Mr. Bhuyan vehemently submitted that the detenue was neither informed about the cause of his detention when he was picked up from his residence at Tingkhong nor supplied him with copy of the complaint (F.I.R.) in utter violation of the directions contained in Sheela Barse -Vs- State of Maharashtra [reported in Page No.# 7/28 (1983) 2 SCC 96] and the learned Judicial Magistrate also unfortunately most casually and mechanically authorised his detention in police custody violating all norms of law and the mandate of the Hon'ble Apex Court in Arnesh Kumar
-Vs- State of Bihar & Another [reported in (2014) 8 SCC 273]. Mr. Bhuyan, therefore, submitted that the remand order being afflicted with the vice of illegality and inapplication of judicial mind by the learned Judicial Magistrate, the same may be quashed and set aside to protect the right to liberty of the detenue. In this context, Mr. A. K. Bhuyan, learned counsel for the petitioner also referred to the ratio of the judgement rendered by the Hon'ble Supreme Court in State of Uttar Pradesh -Vs- Abdul Samad and Another [reported in AIR 1962 SC 1506] and in the matter of Madhu Limaye and others [reported in 1969 (1) SCC 292]. Mr. Bhuyan also referring to the decision of the Apex Court in Bhim Singh -Vs- State of J & K and others [reported in (1985) 4 SCC 677] emphatically submitted that in view of the aforesaid legal lapses on the part of the Investigating Officer, it is apparent that he without having any regard to the personal liberty of the detenue, with a malafide intention deprived him of the rights guaranteed by the constitution and the procedural law.
[BY THE RESPONDENTS]
10. Per contra, Mr. D. Nath, learned senior Government Advocate, appearing for the respondents/State, contended that the instant writ of Habeas Corpus is not maintainable as the detenue was produced before the learned Judicial Magistrate after effecting arrest complying with all necessary formalities within the prescribed period of 24 hours and presently, he is in judicial custody as per the remand order of the Court. Mr. Nath, referring to the mandates of Article 22 of the Constitution and Sections 57 and 167 Cr.PC., relating to arrest and custody, submitted that on reading of the aforesaid provisions, makes it amply Page No.# 8/28 clear that an arrested and detained person needs to be produced before the nearest Magistrate within a period of 24 hours, excluding the time necessary for the journey. Section 57 Cr.P.C. also mandates the same in regard to an arrested person and such arrest is stated to be preceded by detention. Likewise, Section 167 Cr.PC., Mr. Nath submitted, requires the order of a Magistrate authorising detention of an arrested person, if investigation cannot be completed within 24 hours. According to Mr. Nath, Section 57 Cr.P.C. does not come into operation until a police officer makes an arrest of the accused person without warrant.
11. Explaining the legal position, Mr. Nath submitted that arrest is a species of detention or custody inasmuch as it is a formal act of detention under the authority of law which ensues compliance of the procedural formalities to be followed by the arresting authority under Chapter V of Cr.P.C. that deals with the subject matter of arrest. Mr. Nath pertinently submitted that per contra, every detention may not lead to arrest in cases for example in investigative detention, preventive detention, recording of statements of witnesses etc. in which case the detenue may be released after conclusion of enquiry made by police.
12. Mr. Nath also submitted that the term 'arrest' is not defined in the code of Criminal Procedure, but the Hon'ble Supreme Court, in Directorate of Enforcement -Vs- Deepak Mahajan 1994(3) SCC 440 in paragraph Nos. 45 and 46 succinctly defined what is arrest and detention in custody. Referring to the proposition of law laid in Lalita Kumari -Vs- State of Uttar Pradesh & others [reported in AIR 2012 SC 1515] , Mr. Nath submitted that rigors of Sections 57 or 167 Cr.PC. would come only after formal arrest if made by police and the anterior interrogation period would fall under the preliminary enquiry, which is Page No.# 9/28 lawful. Mr. Nath further submitted that in para 111 of the said judgment, while enlisting the category of cases where preliminary enquiry may be made included the corruption cases.
13. Mr. Nath, learned Senior Government Advocate for the respondents/State submitted that the instant Fatasil Ambari P.S. case inextricably deals with allegation of rampant corruption and siphoning of huge amount of fund of the ACA, while the detenue was holding the post of Honorary Secretary of it and having not been able to procure presence of him at Guwahati, on 15.12.2021, the Investigating Officer had to rush to his place or residence at Tingkhong to request him to join in the investigation and accordingly he voluntarily accompanied the investigating police team to Guwahati in order to deliver the relevant documents. Thereafter, Mr. Nath submitted, on securing the detenue's co-operation and on material information having been received and further, after interrogation having found prima facie incriminating evidence, on 16.12.2021, evening, he had to be formally arrested in connection with Fatasil Ambari P.S. Case No. 817/2021. Accordingly, on the following day, that is, on 17.12.2021 at about 2.30 pm, he was produced before the learned Judicial Magistrate at Guwahati, before expiry of the mandatory stipulated period of 24 hours as per the requirement of Section 57 or 167 Cr.PC. In this context, Mr. Nath emphatically submitted that the veracity of the relevant entries made by the impartial Investigating Officer of the case will certainly establish these material facts and, as such, this Court may take the aide of the judicial case record and the police case diary to ascertain those facts.
14. So far the question of transit remand of the detenue is concerned, Mr. Nath clarified that on 15.12.2021 the detenue was not arrested. According to Mr. Nath, the transit remand is usually sought when the journey would exceed Page No.# 10/28 the limit of 24 hours deadline as set forth in Section 167 Cr.P.C. to produce before a Magistrate, but here is the case where neither the detenue was arrested on 15.12.2021 nor the transit period exceeded 24 hours.
[BY LEARNED PUBLIC PROSECUTOR]
15. Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court, who appeared on request, submitted in short supporting the arguments advanced by Mr. D. Nath, learned Sr. Government Advocate appearing for the respondents.
16. I have carefully considered the above submissions made by the learned counsel of both sides. Apart from appreciating the rival affidavits filed in the instant petition, I have taken the aid of the case record and also the case diary as the same is maintained under Section 172 Cr.P.C. which requires every investigating officer to make entries on a day-to-day basis of the steps taken in course of any investigation, the place (s) he visited etc. to ascertain whether the detention of the petitioner's father is lawful or illegal.
ISSUES:
17. Based on the rival contentions, basically the following issues have come up for consideration before this Court.
1) Whether 'picking up' of the detenue from his residence at Naharkatiya in Tingkhong Sub-Division under Dibrugarh district, Assam by the police of Fatasil Ambari Police Station at Guwahati on 15.12.2021 at 10.30 p.m., in connection with Fatasil Ambari P.S. case No. 817/2021 was done in violation of his rights guaranteed and mandated in Articles 21 and 22 of the Constitution read with Sections 50, 50A Cr.P.C.?
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2) Whether, thereafter, production of the detenue before the Court of learned Sub-Divisional Judicial Magistrate (S) No. 2, Kamrup (M) at Guwahati on 17.12.2021 at 2.30 p.m. without transit remand order, was in violation of Sections 57, 60A Cr.P.C.?
3) Whether the impugned order of police remand of the detenue by the learned S.D.J.M., Guwahati by order, dated 17.12.2021 was a violation of the mandate of Section 57 read with Section 167 Cr.P.C.?
PROSECUTION CASE & INVESTIGATION:
18. It may pertinently be mentioned that an F.I.R. was lodged on behalf of the A.C.A. on 06.12.2021 with the Officer-in-Charge of Fatasil Ambari P.S. alleging, inter-alia, that the detenue herein while holding the post of Honorary Secretary of the said A.C.A. in connivance with his other office bearers committed rampant corruption and siphoned off a huge amount of fund running to several crores allocated for various infrastructural developmental projects during the period from 12.06.2016 to 12.01.2019. Based on it, Fatasil Ambari P.S. Case No. 817/21 under Sections 120B/406/409/420/469/34 of the IPC was registered on 06.12.2021 and the Officer-in-Charge initially entrusted S.I. (U.B.) Rituparna Gogoi to investigate the case and further, the Deputy Commissioner of Police, West Guwahati Police District, by an order dated 07.12.2021 vide Memo No. DCP/WGPD/CB/SIT/2021/2431 constituted a Special Investigating Team (SIT) consisting of 4(four) police officers to apprise the progress of investigation of the case to him daily and 'complete the investigation at the earliest'.
OBJECT OF WRIT OF HABEAS CORPUS:
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19. It may be pointed out that the object of issue of writ of habeas corpus is to see that no person is deprived of his liberty except in compliance with the authority of law and if the custody is not in accordance with law, then to release him. In Maneka Gandhi -Vs- Union of India, reported in AIR 1978 SC 597, the Hon'ble Supreme Court has given a wide interpretation of the concept of liberty by holding that "procedure established by law" in Article 21 of the Constitution means "fair and reasonable" procedure. It has been held, in reference to the mandate of Article 21, that it envisages "reasonable, fair and just procedure". The constitutional safeguard of the individual liberty is rooted in Article 14 of the Constitution which envisages guarantee to every person "equality before law" and "equal protection of law".
FIRST ISSUE:
[NO VIOLATION OF RIGHTS]
20. With regard to the first issue, this Court finds it appropriate to extract Articles 14, 21 and 22 of the Constitution-
"14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
"21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law."
"22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply--
a. to any person who for the time being is an enemy alien; or b. to any person who is arrested or detained under any law providing for Page No.# 13/28 preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless--
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe--
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub- clause (a) of clause (4)]."
21. From the above, it is noticed that Article 22(2) of the Constitution mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the aforesaid period without the authority of a Magistrate.
22. The aforesaid constitutional safeguard embodied in Article 22(2) has Page No.# 14/28 been incorporated in Sections 56 and 57 Cr.P.C. Although Section 56 does not specify any definite time limit for production of the person so arrested without warrant before a Magistrate having jurisdiction or Officer-in-Charge of Police Station and provides only that it must be "without unnecessary delay". Section 57 Cr.P.C. and Article 22(2) have conjointly put a cap of 24 hours plus the time necessary for the journey. Therefore, the actual time necessary for the journey from the place of arrest to the Court of Magistrate is not to be counted in 24 hours, but the Magistrate before whom the arrestee is produced must be satisfied as to its reasonability based on the explanation given for such delay.
23. A reference may pertinently be made here to the observations made in Pragya Singh Thakur -Vs- State of Maharashtra, reported in [(2011) 10 SCC 445] to the effect that 'Arrest' is a concept recognized by the Cr.P.C. and more particularly in Section 46. In arrest there is custody, but 'custody' is not always arrest. There is distinction between 'arrest' and 'custody'. When there is no arrest, there is no obligation to comply with Article 22(1) and (2) of the Constitution. The Court held that if a person is questioned on different occasions by police thinking that he/she might be involved in the crime in question, he or she cannot be said to be in custody, far less under arrest. The person so long the said person was interrogated cannot be taken into account in computing the period of 90 days under Section 167(2) Cr.P.C. In Deepak Mahajan (supra), the Hon'ble Apex Court held that 'custody' and 'arrest' are not synonymous terms. In every arrest, there is custody, but not vice versa. A custody may amount to an arrest in certain cases. Taking a person for interrogation or investigation is neither arrest, nor detention, nor taking into custody.
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24. Chapter V of the Code of Criminal Procedure prescribes the complete procedure of arrest of persons. Section 41 Cr.P.C. vests power on a police officer to arrest any person, who is either involved or suspected to be involved in cognizable and non-cognizable offences. In the case of a non-cognizable offence, however, the power to investigate such offence requires prior order of a competent Magistrate. A conjoint reading of Sections 50 and 50A Cr.P.C. reveals that once the police officer arrests a person it is obligatory on his part to inform the arrestee the full particulars of the grounds of arrest and inform about arrest and place where he is being held to his friends, relatives or such other persons as may be disclosed or nominated by him. In Sheela Barse(supra), the Hon'ble Supreme Court held these rights of the arrestee to be mandatory in the light of the implication of Article 21 of the Constitution. It may be pointed out that the directions given by the Hon'ble Apex Court in D.K. Basu Vs. State of W.B. received the statutory recognition by enacting Sections 41 A, 41B, 41C and 41D Cr.P.C. and as such, those directions are not separately discussed herein.
25. In the above context, however, the Hon'ble Apex Court in Joginder Kumar Vs. State of Uttar Pradesh, reported in AIR 1994 SC 1349 observed-
"No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest Page No.# 16/28 should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do."
26. In Arnesh Kumar Vs. State of Bihar &Anr., reported in (2014) 8 SCC 273, the Hon'ble Supreme Court laid the following observations-
"7.1. ........it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2.The Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. In pith and core, the police office before arrest must put a question to Page No.# 17/28 himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of CrPC."
27. Now, coming to the case in hand, on perusal of the rival contentions as stated above and the relevant case diary, it is revealed that on 15.12.2021, Inspector Debyajyoti Phukan of Fatasil Ambari P.S. along with his staff appeared before the Officer-in-Charge, Tingkhong P.S. and reported him about the case and then they along with the staff of the said Police Station proceeded to the residence of the detenue located at Bailung Bhati Gaon, where they reached at 11.25 a.m. Inspector Debyajyoti Phukan, having found the detenue at home, he initially informed him about his requirement for 'preliminary enquiry' in connection with the aforementioned Fatasil Ambari P.S. Case No. 817/2021 and for the relevant documents, but in reply informed that "all documents are kept at Guwahati house". The detenue expressed willingness "to go with police for Guwahati for production of relevant documents". Accordingly, they all left Tingkhong for Fatasil Ambari P.S. at Guwahati informing his son, Kowstova Buragohain, the petitioner herein, on 15.12.2021 at 11.30 p.m. They arrived at Fatasil Ambari P.S. on 16.12.2021 at 10 a.m. and asked the detenue "to go to his Guwahati residence for refreshment and come to the P.S. at 11 a.m. along with the relevant documents of the case." However, it is noticed that on 16.12.2021, at about 10.05 a.m. he denied to go to his house for refreshment and bring the relevant Page No.# 18/28 documents. Therefore, on 16.12.2021 at 11 a.m., the investigating officer, Inspector Debyajyoti Phukan, the Officer-in-Charge, Fatasil Ambari P.S. recorded his statement under Section 161 Cr.P.C. at his police station itself and having found prima facie sufficient evidence and for proper investigation of the case vide accused forwarding grounds quoted at an appropriate place below arrested the detenue on 16.12.2021 at 6 p.m. in connection with the case, after serving the arrest memo, notice and preparing the check list, procuring inspection memo etc. and communicating the ground of arrest to his relatives as well as serving notice under Section 50 Cr.P.C. vide the affidavit-in- opposition and the case diary.
28. Thus, it is noticed that in course of the aforesaid preliminary enquiry in connection with Fatasil Ambari P.S. Case No. 817/2021 which is pertaining to alleged corruption in respect of fund of A.C.A. and as averred in the affidavit- in-opposition filed by the respondents No. 1 and 2 and further, the prima facie evidence available on the case record as well as the case diary reveal that on 15.12.2021 at 11.30 p.m., the detenue, in fact, voluntarily extended his co- operation in investigation by assuring the investigating officer, Inspector Debyajyoti Phukan, to provide the relevant documentary evidence available in his custody at his residence at Guwahati in connection with the said case and accordingly, the detenue voluntarily accompanied with the police to Guwahati.
29. As pointed out above, the police party headed by Inspector Debyajyoti Phukan and the petitioner's father arrived at Fatasil Ambari P.S. at Guwahati on the following day, that is, on 16.12.2021 at 10 a.m. The investigating officer, the case diary shows, asked him to go to his residence at Guwahati for refreshment and report back at 11 a.m. with the relevant documents which he had stated to be available in his custody. This anterior part of interrogation on Page No.# 19/28 voluntary co-operation of the detenue undoubtedly fell within the expression 'investigative detention' under preliminary enquiry, which is lawful as justified by the Hon'ble Supreme Court in Joginder Kumar (supra) and Lalita Kumari (supra).
30. In view of the aforesaid position of law, it can be inferred that assuming that the detenue was picked up from his residence at Tingkhong, Dibrugarh for the purpose of interrogation or investigation by the police, it neither amounted to arrest nor detention, nor taking into custody as certainly enough there was no legal surveillance or restrictions on the movements of the detenue in any manner during the period of his voluntary co-operation in preliminary enquiry in the said case within the meaning and scope of Section 46 Cr.P.C.
31. Therefore, in such a factual situation, where the detenue voluntarily accompanied with police to assist in investigation, there was no obligation on the part of the investigating police officer to ensure compliance of the obligations, provided under Sections 50, 50A and to obtain a transit remand under Section 167 Cr.P.C. in respect of the said detenue and as such, there was certainly no violation of the fundamental rights stipulated in the aforesaid Sections of Cr.P.C. or the mandate of Article 22 (1) of the Constitution.
SECOND ISSUE:
[NO VIOLATION]
32. It may be mentioned that Section 60A Cr.P.C. lays down that no arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force providing for arrest. It is the settled position of law that the safeguard provided in Article 22(2) of the Constitution read with Sections 56 and 57 Cr.P.C. starts from the date and time of arrest of a person.
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33. As stated above, the detenue voluntarily cooperated with the investigating police officer in the preliminary enquiry in connection with Fatasil Ambari P.S. Case No. 817/2021 and voluntarily moved with them to Guwahati from Naharkatiya Tingkhong residence assuring to deliver certain relevant documents which were available at his Guwahati residence and accordingly, after they reached the said Police Station, the police asked him for refreshment and bring the documents from his Guwahati residence.
34. In the instant petition, it is noticed that the detenue was put under arrest on 16.12.2021 at 6 p.m. observing necessary formalities as required under Sections 50 and 50A Cr.P.C. and produced him before the Court of learned Judicial Magistrate at Guwahati on the following day, that is, on 17.12.2021 at 1.45 p.m., that is, within a period of 24 hours of his arrest. There is no confusion, if one looks at the records, that in anterior period to the detenue's formal arrest, he was neither detained nor arrested within the implications of Section 41 or 41B Cr.P.C. Therefore, it cannot be said that the detenue's right under Article 22(2) of the Constitution read with Sections 56 and 57 Cr.P.C. was violated.
THIRD ISSUE:
[NO ILLEGALITY IN REMAND ORDER]
35. With regard to the petitioner's prayer for declaring the impugned remand order of his father dated 17.12.2021 passed by the learned Judicial Magistrate, Kamrup (M) at Guwahati in connection with the said case and all consequential remand orders as unconstitutional and illegal, this Court finds it appropriate to extract the aforesaid order hereinbelow-
"17.12.2021 Accused person Sri Pradip Buragohain is produced before me in connection Page No.# 21/28 with the instant case. I have gone through the forwarding report and the other documents annexed along with. The offence alleged against the accused person is registered under Section 120B/406/409/420/469/34 IPC.
On being asked, the accused persons replied that he has engaged an advocate.
Upon perusal of grounds of arrest enumerated in the forwarding report, I find that the arrest and detention is justified.
Further the I.O. of the instant case has prayed for 7 days of police custody of the said accused person for the purpose of thorough investigation.
Also seen the bail petition No. 897/2021 filed by the accused/petitioner Sri Pradip Buragohain praying to allow him to go on bail.
Heard the Ld. Counsel for the accused. He vehemently raised objection against the arrest of the accused person on ground that I.O. had arrested the accused person flouting the procedure established by law. The Ld. Counsel submitted that the accused was detained by the I.O. on 15-12-2021, but he was not produced before Court within 24 hours of his detainment violating section 57 of the CrPC. The Ld. Counsel for the accused also submitted that the police have violated the procedure laid down by section 50 and 50(A) of the CrPC. The Ld. Counsel for the accused person further submitted that offence u/s 409 IPC is not at all attracted in the instant case as the accused is not a public servant. The Ld. Counsel of the accused further in support of his argument cited the following judgment 1) "Prahlad Singh Bhati Vs. NCT, Delhi & Another", (2001) 4 SCC 280, 2) "Board of Control for Cricket in India Vs. Cricket Assn. of Bihar", (2015) 3 SCC 251 3) "The BalasahebSatbhai Merchant Vs. The State of Maharashtra" on 21 September, 2011, Cri. Application No. 3362/2009 and 4) "Kamal Dutta Vs. The Union of India & 5 Ors on 5 November, 2015", WP(Crl.) No. 07/2014.
The Ld. APP raised objection against the bail prayer of the accused. I have heard both the sides and perused the material on record. Perused the FIR and upon perusal it appears that the allegation levelled against the accused person is that during his tenure as Honorary Secretary of Assam Cricket Association (ACA) during the period between 12-06-2016 to 12-01-2019 he Page No.# 22/28 had misappropriated crores of funds of Assam Cricket Association (ACA).
As stated above, the ld. Counsel for the accused have submitted that the accused was not produced before this court within 24 hours of arrest and transit remand was obtained by the I.O.
The date of arrest of the accused person is shown as 16-12-2021 in the arrest memo. The medical examination report of the accused is dated 17-12-2021.
The I.O. in Court has verbally stated that he had detained the accused person on 15-12-2021, but have arrested him on 16-12-2021.
From plain reading of the arrest memo it appears that the accused is produced before this Court within 24 hours of the arrest. However, the submission made by the I.O. points towards a different picture.
Section 57 of the CrPC states that "no police officer shall detain in custody a person arrested without warrant for longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
Section 57 CrPC in no uncertain terms states that an arrested person is to be produced before the Magistrate within 24 hours of the arrest unless there is a special order by concerned Magistrate.
However, section 57 CrPC is conspicuously silent as to effect of non production of the accused within 24 hours of arrest on the validity of the arrest itself.
The lapse on the part of the I.O. do not ipso facto dismantles the merits of the case and entitles the accused to be released forthwith if there is substantial allegation against him, which needs to be investigated.
In view of the allegations made against the accused person and the plea taken by him that he has been falsely implicated in the instant case due to political rivalry and vested interest of the complainant, a thorough and in-depth investigation will be beneficial to find the truth of the allegation made against the accused person.
Hence, custodial interrogation of the accused person Sri Pradip Buragohain is essential for unearthing the truth or falsity of the allegation levelled against him. Therefore, police custody of the accused person Sri Pradip Boragohain is allowed for Page No.# 23/28 2(two) days. During the period of Police custody, the I/O is directed to ensure that the accused person do not go through any amount of custodial torture. Also the accused person shall be provided food, water and basic amenities during the period of police custody. Also, I/O shall ensure that the accused person is Medically examined by a registered Medical Practitioner every 24 hours and produce the said certificate at the time of production before the Court. The I.O. is directed to follow the guidelines of the D.K. Basu case.
The accused has submitted that he is diabetic patient. The I.O. directed to provide prescribed medicines to the accused person Sri Pradip Buragohain.
In view of the above discussion, the bail prayer of the accused person is rejected at this stage.
Fix 19.12.2021 for production of the accused person Sri Pradip Buragohain."
36. It is noticed that while producing the detenue along with an accused forwarding report, on 17.12.2021 at about 1.45 p.m., Inspector Debyajyoti Phukan, Officer-in-Charge, Fatasil Ambari P.S. cited the following grounds praying for his police remand for 7 (seven) days-
"Police Remand is required:- The arrested accused person is directly involved into the case and large amount of anomalies during his working period in ACA. Police remand may kindly be allowed on the following grounds:
1. To interrogate the person thoroughly, as the person is yet to fully cooperate in the investigation, so as to know about the details of the anomalies caused.
2. Remand of the person is necessary to trace out the accomplices of the person who were involved in the whole nexus.
3. The electronic devices of the person such as phones, laptops etc. that may lead to unearth the nexus has to be recovered and thoroughly analysed.
4. Also, it has been learnt during the course of investigation that the arrested person has many residence/offices at a number of places which has to be Page No.# 24/28 searched during the course of investigation for recovering of documentary evidences.
5. It is necessary to know the details of monetary transactions involved in the case, in both cash and bank accounts of the person as it is evident that there has been huge amount of transactions in the said case.
6. To know about the money trail.
Therefore, I pray your honour may kindly allow 7 days police remand. Under above facts and circumstances stated above I pray your honour may not kindly enlarge the arrested accused persons on bail at this stage of investigation. As his release on bail may hamper in investigation by tempering witnesses as well as hamper the investigation of the case. The arrested accused persons already been medically examined and ground of arrest already been communicated them and their family members by issuing notice, arrest memo etc."
37. In Arnesh Kumar (supra), the Hon'ble Supreme Court issued the following directions (relevant) in respect of arrest and detention:
"8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.
8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention under Section 167 Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by Page No.# 25/28 the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."
38. A perusal of the above impugned order, it is revealed that the learned Judicial Magistrate on being satisfied that the detenue on his own engaged a counsel to defend his case and that his arrest and detention in connection with the said case was justified and further, that the provisions contained in Sections 50, 50A and 57 Cr.P.C. were duly complied with granted his police custody under Section 167(2) Cr.P.C. for 2(two) days subject to the guidelines Page No.# 26/28 provided in D.K. Basu case (supra). The records reveal that the detenue was subjected to medical examination on 17.12.2021 after he was arrested on 16.12.2021 at 6 p.m. and before he was produced before the learned Judicial Magistrate at Guwahati on 17.12.2021 at 1.45 p.m. vide the medical examination report. Situated thus, this Court is of the opinion that the learned Judicial Magistrate while passing the impugned remand order of the detenue, dated 17.12.2021, implicitly followed the aforesaid directions of the Hon'ble Supreme Court contained in Arnesh Kumar (supra) vis-à-vis the legislative mandates of Article 22(2) of the Constitution read with Sections 41, 57 and 167 Cr.P.C. Therefore, it is apparent that the learned Judicial Magistrate having found no irregularity in anterior part of formal arrest and post arrest period of the detenue, felt no necessity to proceed against the investigating officer or take judicial notice of alleged unfounded irregularities/illegalities.
CONCLUSION:
39. For the above stated reasons, the writ petition being devoid of merits, the same stands dismissed.
SOME RELEVANT OBSERVATIONS:
40. Before parting with the instant petition, it may pertinently be pointed out that Code of Criminal Procedure is a complete procedural law that regulates the machinery for investigation of crime, prevention of crime, safeguarding the constitutional rights guaranteed to the people and also the conduct of proceedings of the Court under the general and Special Acts, where made applicable. It may be pointed out that the investigating agency has a pivotal role in effectively protecting the personal liberty and security of every individual avoiding any arbitrary arrest or detention, because the Constitution guarantees Page No.# 27/28 that no one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. Time has come to urgently repair and restore the faith of the people on the fairness and transparency of the investigating agencies of the State by adopting measures to appeal visibly the people friendly approach to the aggrieved parties to the criminal cases. Therefore, to remove any shadow of doubt in the mind of the public regarding transparency and fairness in investigation or crime, it is the primary duty of the state to see that the guidelines of the Hon'ble Supreme Court issued in a catena of decisions, some of which are referred to above, are strictly followed during investigation, but, it is often unfortunately noticed that those mandated guidelines are not punctually observed may be due to want of proper and manifested guidelines of the State and effective routine training on laws, general and special statutes and also lack of effective supervision on investigations. Time has also come to consider whether steps have been initiated to make the younger generation aware of the laws more particularly, on the Indian Penal Code, The Protection of Children from Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act, The Consumer Protection Act etc. to make them good citizens in future by making them to study as a subject at their tender age.
SUGGESTIONS:
41. Therefore, the respondents more particularly the respondent No. 2 is suggested that for easy ready reference of the investigating officers appropriate guidelines and check lists etc. in respect of general and special statutes may be issued to them strictly following the Hon'ble Supreme Court guidelines and other relevant laws at the earliest possible.
42. Accordingly, the writ petition stands disposed of.
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43. Furnish a copy of this judgment and order to the learned Public Prosecutor, Gauhati High Court for favour of taking necessary steps from his end for implementing the suggestions meant for the investigating agency contained in paragraph No. 41 through the respondent No. 2/the Commissioner and Secretary to the Govt. Assam, Home and Political Departments, Dispur, Assam.
JUDGE Comparing Assistant