# [1969] 3 S.C.R. 154

- **Citation:** [1969] 3 S.C.R. 154
- **Court:** Supreme Court of India
- **Decided:** 1968-12-18
- **Case number:** Writ Petition No. 355 of 1968
- **Bench:** C. Shah, V. Ramaswami, N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-3-s-c-r-154-4845
- **Pages:** 11

## Headnote

Comtfrution of India, Art. 22(1)-Necessity of infornzing person
cu:rested grounds for his arrest-Arrest illegal if Article not complied
with-Order of renu;nd by 1nagistrate cannot cure constitutional infirniity.
. The petitioners were arrested on Novrmber 6, 1968 at a rail\\•ay stauon in Bihar.
According to the Sub-Inspector's report recorded in the
general diary they bad taken out a procession in defiance of a prohibitory
order under s. 144 Cr. P.C. and bad been arrested under s. 151 Cr. P.C.
It was stated that report was being submitted "under sections J 07 and 117
of the Criminal Procedure Code and under s. 188 of the Indian Penal Code.''
On November 6 itself the first petitioner sent a petition under Art. 3 2
of tbe Constitution in the form of a letter mentioning that he and his
companions had been arrested but no grounds of 'arrest had been communicated to them and they had been merely told that the arrests had
hcen made "under sections which were bailable". It was pray.:d that
a writ of Habeas Corpus be issued.
On November 7, 1968 a similar
potition was sent by the petitioners from Jail. The additional fact given
was that the arrested persons had been produced before the sub-Divis.ional Magistrate who had on their refusal to. furnish bail remanded them
to custody upto November 20, 1968. Rule nisi was is.sued by this Court
to the State authorities to produce the petitioners before the. Court on
November 25, 1968.
On November 19, 1968 a first information report
was rcco1".ied in which it was alleged that the petitioners had on Noven1·
her 6, 1968 committed offences under ss. 188 and 143 of the Penal
Code.
In the return, before this Court it was explained on behalf of
the State that the officer·in·charge while forwarding the arrested persons
on November 6, 1968, had by mistake omitted to mention s. 143 J.P.C.
\Vhich was a cognizable offence.
It was urged that the order of remand
passed· by the l\.1agistratc could not be said to be illegal merely· becausz
of the omission of s. 143 1.P.C. in the order sheet when the police repo'rt
ckarlv made out a case under that section.
It was not claimed that the
grt}urids of ;.1rrcst had been supplied to the petitioners.
HELD : (i) When the arrests were effected by the. Sub-Inspector on
November 6, 1968, the offences for which the arrests were made were
not stated to be cognizable.
In the various reports etc. the only offence.
alleged was one under s. 188 I.P.C. which is non.cognizable. There
\Vas force in the suggestion of the petitioners that the first information
re·port came to be recorded formally on November 19,
1968
only be~
cause the matter had been brought to this Court by way of a petition
un.dcr Art. 32 and a further petition had been moved in the High COurt
under Art. 226. It was not proved that the arrest had been made at
the direction of a Magistrate \Vho was present. It was somewhat surprising that no affidavit of the said Magistrate had been filed.
It would
be legitimate to conclude that the_ arrest of the petition.ers \vas . effc~ted
hv the police. officers concerned without any specific orders or d1rechons
of" a ~lagistrate on November 6. 1968 for the offences and proceedings
mentioned before in the various reports made prior to November 19, 1968.
[159 D-E; 160 B-161 BJ
B
c
D
E
F
G
H
B
c
D
E
F
G
H
MAOHU LIMAYE, rN RE (Grover, J.)
I 55
(ii) The two requirements of cl. (I) of Art. 22 are meaut to afford
the earliest opportunity to the arrested person to remove anr mistake.
misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that
he can exercise the second right, namely, of consulting a legal practitioner
of his choice and to be defen<led by him. Whenever the Article is not
complied with the petitioner would be entitledi to a writ of Habeas Corpus
directing his release. [162 E--163 CJ
In the present case the return filed by the State did not contain any
information as to when and by w

## Text

IN THE MATTER OF MADHU LIMAYE & ORS.
A
December 18, 1968
(J, C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.]
Comtfrution of India, Art. 22(1)-Necessity of infornzing person
cu:rested grounds for his arrest-Arrest illegal if Article not complied
with-Order of renu;nd by 1nagistrate cannot cure constitutional infirniity.
. The petitioners were arrested on Novrmber 6, 1968 at a rail\\•ay stauon in Bihar.
According to the Sub-Inspector's report recorded in the
general diary they bad taken out a procession in defiance of a prohibitory
order under s. 144 Cr. P.C. and bad been arrested under s. 151 Cr. P.C.
It was stated that report was being submitted "under sections J 07 and 117
of the Criminal Procedure Code and under s. 188 of the Indian Penal Code.''
On November 6 itself the first petitioner sent a petition under Art. 3 2
of tbe Constitution in the form of a letter mentioning that he and his
companions had been arrested but no grounds of 'arrest had been communicated to them and they had been merely told that the arrests had
hcen made "under sections which were bailable". It was pray.:d that
a writ of Habeas Corpus be issued.
On November 7, 1968 a similar
potition was sent by the petitioners from Jail. The additional fact given
was that the arrested persons had been produced before the sub-Divis.ional Magistrate who had on their refusal to. furnish bail remanded them
to custody upto November 20, 1968. Rule nisi was is.sued by this Court
to the State authorities to produce the petitioners before the. Court on
November 25, 1968.
On November 19, 1968 a first information report
was rcco1".ied in which it was alleged that the petitioners had on Noven1·
her 6, 1968 committed offences under ss. 188 and 143 of the Penal
Code.
In the return, before this Court it was explained on behalf of
the State that the officer·in·charge while forwarding the arrested persons
on November 6, 1968, had by mistake omitted to mention s. 143 J.P.C.
\Vhich was a cognizable offence.
It was urged that the order of remand
passed· by the l\.1agistratc could not be said to be illegal merely· becausz
of the omission of s. 143 1.P.C. in the order sheet when the police repo'rt
ckarlv made out a case under that section.
It was not claimed that the
grt}urids of ;.1rrcst had been supplied to the petitioners.
HELD : (i) When the arrests were effected by the. Sub-Inspector on
November 6, 1968, the offences for which the arrests were made were
not stated to be cognizable.
In the various reports etc. the only offence.
alleged was one under s. 188 I.P.C. which is non.cognizable. There
\Vas force in the suggestion of the petitioners that the first information
re·port came to be recorded formally on November 19,
1968
only be~
cause the matter had been brought to this Court by way of a petition
un.dcr Art. 32 and a further petition had been moved in the High COurt
under Art. 226. It was not proved that the arrest had been made at
the direction of a Magistrate \Vho was present. It was somewhat surprising that no affidavit of the said Magistrate had been filed.
It would
be legitimate to conclude that the_ arrest of the petition.ers \vas . effc~ted
hv the police. officers concerned without any specific orders or d1rechons
of" a ~lagistrate on November 6. 1968 for the offences and proceedings
mentioned before in the various reports made prior to November 19, 1968.
[159 D-E; 160 B-161 BJ
B
c
D
E
F
G
H
B
c
D
E
F
G
H
MAOHU LIMAYE, rN RE (Grover, J.)
I 55
(ii) The two requirements of cl. (I) of Art. 22 are meaut to afford
the earliest opportunity to the arrested person to remove anr mistake.
misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that
he can exercise the second right, namely, of consulting a legal practitioner
of his choice and to be defen<led by him. Whenever the Article is not
complied with the petitioner would be entitledi to a writ of Habeas Corpus
directing his release. [162 E--163 CJ
In the present case the return filed by the State did not contain any
information as to when and by whom the petitioners were informed of
the grounds of their arrest.
It had not been contended on behalf of the
State that the circumstances were such that the arrested persons must
have known the. geperal nature of the alleged offences for which they had
been arrested.
The petitioners were therefore entitled to be released on
this ground alone. [163 Fl
(iii) Once it was shown that the arrests made by the police officers
were illegal it was necessary for thl! State to establish that at the stage
of remand the Magistrate directed detention in jail custody after applying
his mind to all relevant matters. This the State had failed to do. The
remand orders were patently routine and ·appeared to have bceu n1ade
mechanically.
If the detention of the petitioners in custody could not
continue after their arrest because of the violation of Art. 22(1) of the
Constitution, they were entitled to be released forthwith.
The
orders
of remand were not such as would cure the constitutional
infirmities.
1163 G-164 Bl
Christie & Anr. v. Leachinsky, [1947] 1 All, E.R. 567, Ram Narayan
Singh v. State of Delhi & Ors., A.I.R, 1953 S.C. 277, applied.
ORIGINAL JURISDICTION : Writ Petition No. 355 of 1968.
Petitiqn under Art. 32 of the Constitution of India for writ
in the nature of habeas corpus.
The petitioners Nos. 1 and 2 appeared in person.
M. C. Chag/a and D. Goburdhun, for the State of Bihar.
The Judgment of the Court was delivered by
Grover, J. Madhu Limaye, Member of Lok Sabha, and
several other persons were arrested on November 6, 1968 at
Lakhisarai Railway Station near Monghyr.
On the same date
Madhu Limaye addressed a petition in the form of a letter to
this Court under Art. 32 of the Constitution mentioning that he
along with his companions had been arrested but had not been
communicated the reasons or the grounds for arrest.
It was
stated that the arrested persons had been merely told that the
arrests had been made "under sections which were bailable". It
was prayed that a writ of Habeas Corpus be issued for restoring
liberty as the arrest and detention were illegal.
On November
7, 1968, a similar petition was sent from Monghyr jail.
The
additional fact given was that the arrested persons had been produced before the Sub-Divisional Magistrate who had offered to
156
SUPREME COURT REPORTS
[1969] 3 S.C.R
release them on bail but they had refused to furnish bail.
The
Magistrate had, thereupon, remanded them to custody up to
November 20, 1968. This Court issued a rule nisi to the Government of Bihar and Supdt. District Jail, Moghyr to produce
Madhu Limaye and others whose names were given in the order
dated November 12, 1968 on November 25, 1968.
The State of Bihar filed a return but on November 25, 1968
the Court directed the Advocate General of Bihar to produce
the relevant documents in connection with the recording of the
first information report, the investigation made,
the ··report to
the Magistrate and order sheet, etc.
The hearing was adjourned
to December 2, 1968.
It is apparent from the documents and papers placed before
us that on November 2, 1968, the Sub-Divisional Magistrate
Monghyr issued an order under s. 144, Cr.P.C. prohibiting assemblage of five or more persons within the limits of 100 yards
of Kiul and Lakhisarai Railway Stations for a period of one
week froi:n November 5, 1968 to November 12, 1968. According to the report submitted .bY the Sub-Inspector in-charge of
the Government Railway Police Station Kiul to the Sub-Divisional Magistrate, Sadar, Madhu Limaye and others had defied
the prohibitory orders issued under s. 144 Cr.P.C., by holding
and addressing a public meeting at the railway ground at Lakhisarai Railway Station between 4.30 p.m. and 6.30 p.m. on November 5, 1968 and some out of them had exhorted the public
in provocative language to offer satyagraha at the Railway Station and to disrupt the railway communications as also to obstruct the normal functioning of the railway offices at Lakhisarai.
It was prayed that their prosecution be ordered under s. 188,
Indian Penal Code.
Dharamraj Singh Sub-Inspector entered a
report (Sanha) No. 109 on November 6, 1968, in the general
diary.
It was stated inter alia that Madhu Limaye and others
took out a procession at 3 O'Clock with a flag in violation of the
order made under s. 144, Cr.P.C. _They had entered the Railway Station for launching a strike shunting slogans. This group
had been followed by several other groups of persons the last
being the 8th group (the names in each group were mentioned).
All these persons had been arrested under s. 151, Cr.P.C. and
B
c
E
F
G
had been .sent to the Sub-Divisional Magistrate, Sadar, Mooghyr.
These incidents happened in the presence of Shri Mathur, Magistrate !st Class, Monghyr, Shri B. N. Singh, Railway Magistrate Kiul etc. It was stated that the report was being submitted
"under sections I 07 and 117 of the Criminal Procedure Code · H
and under s. 188 of the Indian Penal Code".
Admittedly no
first information report was formally registered on that date which
was done on November 19, 1968 at 23.30 hrs. In this report
B
c
D
E
F
G
H
MAOHU LJMAYE, IN RE (Grover, }. )
157
in which the date of occurrence is mentioned as November 6,
1968 it was stated that the accused persons had entered the
Railway Station by illegally forming a mob disobeying .the order
under s. 144, Cr.P.C. to disturb the normal functioning of the
railways and had committed offences under s. 143, I.P .C. and
" l 2i of the Railways Act.
The State of Bihar has filed a return according to which the
circumstances in which the prohibitory order. was promulgated
under s. 144, Cr.P.C., are set out. It was stated that from
the leaflets circulated by the Lakhisarai unit of the Samyukta
Socialist Party on November 4, 1968, it appeared that the party
had decided to hold a public meeting on November 5, 1968
and to launch satyagraha at Lakhisarai on November 6, under
the leadership of Madhu Limaye.
On November 5, Madhu
Limaye and others held a public meeting of about 400 persons
at the railway ground in defiance of the order under s. 144
Cr.P.C. and exhorted the public to hold satyagraha at Lakhisarai
Railway Statiqn on November 6 etc.
A report was submitted
by the ofticer-in-charge of the Kiul Government Railway Police
Station on November 6, on which the Sub-Divisional Magistrate, Sadar, made an order on November 11,
1968 directing
show cause notices to be issued to Madhu Limaye and others as
to why action under s. 188, Indian Penal Code, should not
be taken against them.
On November 6, 1968, a procession
of about 200 persons of Samyukta Socialist Party led by Madhu
Limaye and others came to the main gate of the platfonn of
Lakhisarai Railway Station where a Magistrate, Inspector of
Railway Police and Ofticer-in-charge of Kiul Government Railway Pol ice Station were present. When these persons, in spite
of the warning. forcibly entered the platform and violated the
order under s. 144, Cr.P.C., the Magistrate on duty, Shri K. B.
Mathur.
directed the police officers present to arrest them.
Madhu Limaye and others were arrested and a case was instituted
against them.
They were produced before the Sub-Divisional
~agistrate who, on November 6, remanded them to jail custody
hll November 20, as they refused to furnish bail bonds.
On
November. 6, another report. was submitted by 'the officer-incharge, Kml Government Ra!lway Police Station for the incidents which happened on November 6, 1968. A case had been
started on that report and show cause notices had been issued
for November 20. 1968 as to why action should not be taken
under s. 188, I.P.C.
It was claimed that Madhu Lill)aye and
others had committed offences under s. 188 and under s. 143
Penal Code (which is cognizable) by violating the orders made
under s. 144 Cr.P.C., and by forming unlawful assembly.
It
was explained that while forwarding the arrested persons the
officer-m-charge, my mistake, omitted to mention s. 143. It
158
SUPREME COU~T REPORTS
[1969] ~ S.C.R.
was asserted that the order of remand passed by the Sub-Divisional Magistrate could not be said to be illegal merely because
of omission of s. 143, Indian Penal Code, in the order sheet
when the police report clearly made out a case under that section.
It was affirmed that Madhu Lima ye and others had not
been arrested on November 6, while they were participatipg in
a peaceful satyagraha or that the officer-in-charge Kiul purport-
~d to arrest all these persons only under ss. 151, 107 and 117
of the Cr.P.C.
The annexures attached to the return filed by the State and
the documents contained in the original records which were sent
for have revealed the following state of affairs.
On November
6, the
officer-in-charge,
Government Railway
Police Station
Kiul made what is called report (annexure-D) under s. 107(3).
Cr.P.C.
This contained a prayer that Madhu Limaye and 115
others, vide list attached, should be bound over under s. 107
with an order to furnish ad-interim bonds.
It was stated under
column No. 5 (brief history of the case) that as their acts on
November 6, 1968 between 09.15 hrs. and 16.30 hrs. on the
Lakhisarai Railway Station were likely to lead to breach of peace
and disturb public tranquility they had been arrested under s.
151, Cr.P.C.
The same police officer addressed a letter to the
Sub-Divisional Magistrate. Sadar, to the following effect:
"I am forwarding herewith the following accused
persons (list attached herewith) in custody as they have
been arrested u/s 15lil07'.117(3), Cr.P.C.
They
may kindly be remanded in jail Hazat for a fortnight
by which time report u/s 107/117(3) Cr.P.C. and 188
l.P.C. be routed through proper channel.'"
As stated in the return two show cause notices were issued bv
the Sub-Divisional Magistrate Shri P. P. N. Sahi on November
11, 1968 relating to the incidents on November 5, 1968 and
the following ·day.
Madhu Limaye and others were asked to
show cause why action should not be taken against them under
s. 188.
On November 19, 1968 another order was made by a
different Sub-Divisional Magistrate Shri K. K. Pathak saying
that a petition had been filed on behalf of the State in which it
was alleged that the accused persons had committed offences
under ss. 143/448 I.P.C., by forming unlawful assembly with
the common object of committing criminal trespass in violation
of the dnly promulgated order under s. 144 Cr.P.C.
It was
prayed that these persons be summoned for being tried for offences under the aforesaid sections. A show cause notice appears
to have been issued on or about November 20, 1968.
The
remand orders which were passed on November 6 and 20, 1968
A
B
c
D
E
F
G
H
MAOHU LIMAYE, IN RE (Grover, J.)
159
A
were made on the basis that the accused persons had been "arrested and forwarded under custody under ss. 151/107/117 Cr.P.C.
by Sub-Inspector, Government Railway Police Station Kiul".
Madhu Limaye,
who has addressed arguments in person,
has raised, inter alia, the following main contentions :
B
1. The arrests on November 6, 1968 were illegal
c
D
E
F
G
H
inasmuch as they had been effected by Police Officers
for offences which were non-cognizable.
2. There was a violation of the mandatory provisions
of Art. 22(1) of the Constitution.
3. The orders for remand were bad and vitiated.
4. The arrests were effected for extraneous considerations and were actuated by ma/a {ides.
The entire sequence of events from November 5, 1968 onwards is somewhat unusual and has certain features which have
not been explained on behalf of the State.
In the first place
when the arrests were effected by the Sub-Inspector In-charge of
Government Railway Police Station on November 6, 1968 the cffences for which the arrests were made were not stated to be
cognizable. In the various reports etc., to which reference has
been made the only offence alleged was one under s. 188 I.P.C.
which is non-cognizable.
On November 6,
1968 apart from
the allegation of commission of offences under s. 188 the police
reports disclose a variety of proceedings which were sought to
be taken. Section 151 in all likelihood was invoked for effecting
the arrests but proceedings were initiated under s. I 07 which appears in Chapter VITI of the Cr.P.C.
Under that section the
Magistrate can require a person about whom information has
been received that he. is likely to commit a breach of peace, to
show cause why he should not be ordered to execute a bond for
a period not exceeding one year, for keeping peace.
Under s.
117, which was also in".'oked,
t~e Magistrate makes an enquiry
as to the truth of an mformation.
But proceedings under s.
I 07 have to follow the procedure laid down in Chapter VIII
and arrest cannot be effected unless a Magistrate issues a warrant for that purpose under s. 114.
Section 151 which has
been repeatedly referred to in various documents is meant for
~rrestin~ without a warrant and without orders from a Magistrate
1f a pohce officer knows of a design to commit any cognizable
offence and if it appears to him that the commission of such
offence cannot be otherwise prevented.
There can be no manner of doubt, and this position has
hardly been controverted by Mr. Chagla for the State, that in
all the documents which were prepared before November 19.
160
SUPREME COURT REPORTS
[J 969] 3 S.C.R.
1968 there was no mention of an offence under s. 143 I.P.C.
having been committed by Madhu Limaye and other persons
who were arrested on November 6, 1968. It is obviously for
that reason that no fonnal first information report was recorded
on November 6,
1968
which
would have. necessarify been
da.ne if the police officers effecting arrests had thought of s. 143,
Indian Penal Code which is a cognizable offence.
No explanation has been furnished on behalf of the State as to why the
information which was recorded in the general diary on November 6, was not recorded as an information in cognizable cases
under s. 154 of the Cr.P. Code. There is. force in the suggestion
of Madhu Limaye that the first information report came to be
recorded formally
on November 19,
1968 only
because <the
matter had been brought to this Court by way of a petition under
Art. 32 o.f the Constitution and after a rule nisi had been issued
and a petition under Art. 226 had beeu filed In the Patna High
Comt.
The authorities then realised that they had been completely oblivious of the true position that arrests could not have
been effected for a non-cognizable offence made punishable under
s. 188, Indian Penal Code or for taking proceedings under s.
107, Cr.P.C.
Under ·s. 151 Cr.P.Code the police officer· could
have arrested without a warrant but Mr. Chagla has not sought
justification for the arrests under that provision. He has pointed
out that a prihibitory order had been issued under s. 144 which
had been defied by Madhu Limaye and the other persons and
therefore an offence had been committed under s. 143 I.P .C.
The mere omission. he says, to mention a section cannot affect
the legality or validity of the proceedings. Mr. Chagla has also
laid a great deal of emphasis on the statement in the return
that when Madhu Limaye and others were arrested they had violated the orders under s. 144, Cr.P.C. and the Magistrate on
duty Shri K. B. Mathur directed the police officers present to
arrest them. The return is supported by an affidavit of Shri S. C.
Prasad, Magistrate 1st Class, Monghyr according to whom the
contents of para 6 in which this statement occurs were true to
his knowledge. It is somewhat surprising that the affidavit of
Shri K. B. Mathur has not been filed who would have deposed
to all that happened in his presence and the reasons for ordering
the arrests. It is most unusual and extraordinary that in spite
of arrests having been ordered by the Magistrate there is not one
word in any of the papers or documents which have been produced relating to this fact.
The least that wa~ expected was
that there would have been some mention of the order in 'th•:
detailed statement entered in General Diary by the Sub-Inspector in-charge Kiul Police Station on November 6, on the
basis of which a formal first information report was registered
on November 19, 1968.
There,
however,
only the preA
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
MAOHU LlMAYE, IN RE (Grover, J.)
161
,ence of certain officers and other persons including Shri Mathur
is noted.
It would be legitimate to conclude that the arrest of
\1adhu Limaye and his companions was effected by the police
officers concerned without any specific orders or directions of a
'vfagistrate on November 6, 1968 for the offences and the proceedings mentioned before in the various reports made prior
to November 19, 1968.
The submission of Madhu Li.maye on the second point has
hardly been effectively met on behalf of the State.
Art. 22 (1)
provides that no person who is arrested shall be detained in
custody without being informed, as soon as
may be, of the
~rounds for such arrest nor shall he be denied the right to con-
~t1lt and be defended by a legal practitioner of his choice. Madhu
Limaye had, in his petitions addressed to this Cpurt, made a
μositive assertion that he and his companions had not been informed of the grounds for their arrest.
In the return filed by
the State this assertion has neither been controverted nor has
•mything been stated with reference to it It appears that the
authorities wanted to invoke all kinds of provisions like ss. 151,
!07/117 of the Cr.P.C. apart from s. 188 of the Indian Penal
Code. Since no arrest could be effected for an offence und« s.
188 by the police officers without proper order these officers may
have been naturally reluctant to comply with the mandatory requirements of Art. 22(1) by giving the necessary information.
At any rate, whatever the reasons, it has not been explained
even during the course of arguments before us why the arrested
persons were not told the reasons for their arrest or of the offences
for which they had been taken into custody.
Art. 22 (1) embodies a rule which has always been regarded
as vital arid fundamental for safeguarding _personal liberty in
all legal systems where the Rule of Law prevails. For example,
the 6th Amendment to the Constitution of the United States of
America contains similar provisiOjlS and so does Art. :XXXIV
of the Japanese Constitution of 1946. In England whenever an
arrest is made without a warrant, the arrested person has a
right to be informed not only that he i? being arrested but also
of the reasons or grounds for the arrest.
The House of Lords
in Christie & Another v. Leachinsky(1) went into the origin and
development of this rule. In the words of Viscount Simon if a
policeman who entertained a reasonable suspicion that X had
committed a felony were at liberty to arrest him and march him
off to .a police station without giving any explanation of why he
was doing this, the prima facie right of personal liberty would be
gravely infringed.
Viscount Simon laid down several proposi-
(1) (1947] I AIIE.L.R. 567.
162
SUPREME COURT REPORTS
[1969] 3 S.C.R.
lions which were not meant to be exhaustive. For our purposes
A
we may refer to the first and the third :
"1. If a ~o~iceman arrests without warrant upon
resonable susp1c10n of felony, or of other crime of a
sort which does not require a warrant
he must in
ordinary circumstances infom1 the pers~n .arrested of
the true ground. of arrest.
He is not entitled to keep
the reason to himself or to give a reason which is not
the true reason.
In other words, a Citizen is entitled
to know on what charge or on suspicion of what crime
he is seized.
2. . " . " " " " " " " " " " " .
3. The requirement that the person arrested should
be infomed of the reason why he is seized naturally
does not exist if the circumstances are such that he must
know the general nature of the alleged offence for which
he is detained."
B
c
Lord Simonds gave an illustration of the circumstances where the
·o
accused must know why he is being arrested :
"There is no need. to explain the reasons of arrest
if the arrested man is caught red-handed and the crime
is patent to high Heaven."
The two requirements of clause (I) of Art. 22 are meant to
afford the etjf!iest opportunity to the arrested person to remove
any mistake, misapprehension or misunderstanding in the minds
of the arresting authority and, also, to know exactly what the
accusation against him is so that he can exercise the second right.
namely, of consulting a legal practitioner of his choice and to
be defended by him.
Clause (2) of Art. 22 provides the next
and most material safeguard that the arrested person must be
produced before a Magistrate within 24 hours of such arrest so
that an independent authority exercising judicial powers may
without delay apply its mind to his case.
The Criminal Procedure Code contains analogous provisions in ss. 60 and 340 but
our Constitution makers were anxious to make these safeguards
an integral part of fundamental rights.
That is what Dr. B. R.
Ambedkar said while moving for insertion of Art.
l 5A
(as
nuinbered in the draft Bill of the Constitution) which corresponded to present Art. 22 :
"Article ISA merely lifts from the provisions of the
Criminal Procedure Code two of the most fundamental
principles which every civilised country follows as principles of international jus\ice.
It is quite true that
these two provisions contained in clause ( I) and clause
E
F
G
H
A
B
c
D
'E
F
G
fl
MADHU L!MAYE, IN RE (Grover, ]. )
(2) are already to be found in the Criminal Procedure
Code and thereby probably it might be said that we are
really not making any very fundamental change.
But
we are, as l contend, making a fundamental change
because what we are doing by the introduction of Article l 5A is to put a limitation upon the authority both
of Parliament as well as of the Provincial Legislature not to abrogate these two provisions, because they
are now introduced in our Constitution itself."
J63
As stated in Ram Narayan Singh v. State of Delhi & Ors.(')
this Court has often reiterated that those who feel called upon
to deprive other persons of liberty in the discharge of what they
conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law.
Whenever that is not done
the petitioner would be entitled to a writ of Habeas Corpus directing his release.
It remains to be seen whether any proper cause has been
shown in the return for declining the prayer of Madhu Limaye
and other arrested persons for releasi,ng them on the
ground
that there was non-compliance .with the provisions of Art. 22( 1)
of the Constitution. In Ram Narayan Singh's case(') it was laid
down that the Court must have regard to the legality or otherwise of the detention at the time of the return. In the present
case the return dated November 20, 1968 was filed before the
date of the first hearing after the rule nisi had been issued. The
return, as already observed, does not conta,in any information
as to when and by whom Madhu Limaye and other arrested
persons were informed of the grounds for their arrest.
It has
not been contended on behalf of the State that the circumstances
were such that the arrested persons must have known the general
nature of the alleged offences for which they had been arrested;
Pide proposition No. 3 in Christie & Another v. Leachinsky{°).
Nor has it been suggested that the show cause notices which
were issued on November 11, 1968 satisfied the constitutional
requirement. Madhu Limaye and others are, therefore, entitled
to be released on this ground alone.
Once it is shown that the arrests made by the police officers
were illegal. it was necessary for the State to establish that at
the stage of remand the Magistrate directed detention in ,iail
custody after applying his mind to all relevant matters.
This
the State !has failed to do.
The remand orders are patently
routine and appear to have been made mechanically.
All that
Mr. Chagla has said is that if the arrested person wanted to challenge their legality the High Court should have been m°".ed
(I) A.T.R. 1953 S.C. 277.
(2) [1947j 1 All F.1.R. 5fi7.
164
SUPREME COURT REPORTS
[ 1969) 3 S.C.R.
under appropriate provisions of the Criminal Procedure Code.
But it must be remembered that Madhu Limaye and others have,
by moving this Court under Art. 32 of the Constitution, complained of detention or confinement in jail without compliance
with the constitutional and legal provisions. If their detention
in custody could not continue after their arrest because of the
violation of Art. 22 (1) of the Constitution they were entitled
to be released forthwith. The orders of remand are not such as
would cure the constitutional infirmities.
This disposes of the
third contention of Madhu Limaye.
We have been pressed to decide the question of ma/a {ides
which is the fourth contention of Madhu Limaye.
Normally
such matters are not gone into by this Court in these proceedings and can be more appropriately agitated in such other legal
action as he may be advised to institute or take.
We would like to make it clear that we have ordered the
release of Madhu Limaye and the other arrest~d persons with
regard to whom rule nisi was issued on the sole ground of violation of the provisions of Art. 22 ( 1) of the Constitution. . We
desire to express no opinion on the legality or illegality of the
arrests made on November 6, 1968 9f these persons with reference to the first point, namely, that the police officer purported to have effected the arrests for the offences under s. 188,
Indian Penal Code, and under s. 151 as also in respect of proc·eedings under s. 107 of the Cr.P.C., as these matters are subjudice.
We may also proceed to add that any expression of opinion or observation in these proceedings shall not affect the
course of the enquiry or trial of the arrested persons concerning
the occurrences on November 5 and 6, 1960 ·which may be
pending in the courts in the State of Bihar and such proceedings
shall be disposed of in accordance with law.
Madhu Limaye and other arrested persons have already been
ordered to be released by this Court and no further directions
are necessary in the matter of their being set at liberty.
G.C.
Petitions allowed.
A
B
c
I)
E
F