Charan Dass Chawla vs Commissioner Of Police And Ors.
1994 Latest Caselaw 382 Del

JUDGMENT

M.J. Rao, J.

(1) This writ petition was filed on 13th May,1994 seeking the release of Charan Dass Chawla who was allegedly kept in police custody at the police station Vikaspuri, New Delhi. We appointed an Advocate to visit the police station and submit a report. He has accordingly visited and submitted a report in great detail as to how he had to inspect various rooms in the police station and other places and also mentioned as to how he had to approach several police officers in connection with the alleged wrongful detention of the above said person. The Advocate concerned was not able to get any more information and therefore he submitted the report dated 16th May,1994. The case was called on that date. Petitioner's counsel represented on that. day that the petitioner had returned home. So far as respondents are concerned, they denied that the said Chawla was ever detained. However in as much as such cases have become very frequent, we decided to lay down certain general guidelines as done by he Andhra Pradesh High Court in M. Sudhakar vs. Sub-Inspector of Police 1986(1) Ap Law Journal 235 and the Kerala High Court in Poovan v. S.I. of ' Police, and Ors. 1993(1) Klt 454.. '

(2) It has become common experience in High Courts that whenever a Habeas Corpus petition is filed, in cases of unlawful detention the High Court orders notice and after a day or two, a counter is filed by the police authorities stating that the person was not detained on the date alleged but was detained on a later date(probably on the date of the filing of the 83 writ petition) or that the said person was produced before a Magistrate within 24 hours of detention and the Magistrate had remanded the person to judicial custody. Sometimes,it also happens that by the time of the next hearing, the person allegedly kept under detention would return home as in the present case before us. When such counter-affidavits are filed,the High Court dispose of the writ petitions saying that no further orders are necessary. Of course, in some cases, the Court would order an inquiry by a subordinate court for deciding whether the person was detained or not.

(3) It seems to us that if the procedure laid down in the Criminal Procedure Code, is immediately resorted to by the relative of the person under detention, much of this type of litigation-can be avoided. In our view, it is not as if the writ of habeas corpus is the only remedy in such situations.

(4) The provisions of Articles 21 and 22 of the Constitution of India lay down the essence of the fundamental right in regard to the personal liberty. Justice P.N.Bhagwati, J.(as he then was) stated in his article 'Human Rights in the Criminal Justice System" (Published in Indian Bar Review Volume Iii 1985 Pages 316 at page 320) that "cases are not unknown where persons are arrested by the police but no entry of arrest is made in the register and it is only when the police decides to produce the person arrested before the Magistrate that they make an entry of arrest in the register, thus creating a record' showing that they have complied with requirement of production within 24 hours".

(5) In such a situation the question is whether a writ of habeas corpus is the only remedy or whether there is a speedier remedy under the Cr. P.C. Article 21 of the Constitution of India guarantees that no person shall be - deprived of his life or personal liberty except according to procedure established by law. Article 22(1) states that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds of such arrest nor shall he be denied the right to consult or to be defended by a legal practitioner of his choice. Article 22(2) states that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of the 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. The words "Nearest Magistrate" means a Magistrate acting under a judicial capacity as under Section 167 Cr. P.C. The Magistrate before whom the person is produced will then apply his judicial mind to determine in what manner the person had to be dealt with under the Cr.P.C.. A detention by police officer beyond 24 hours is illegal. It can neither be cured nor waived. Such 84 person or any other person on his behalf, can petition the High Court for a writ of Habeas Corpus. This is a constitutional remedy and. cannot be denied even on the ground that an alternative remedy is available; (Gohar Begu in v. Saggi, ). But, what is the Magistrate to do when it is brought to his notice that without his 'authority', a person arrested is being held in police custody for more than 24 hours? Is he helpless? Can he not take any steps for enforcing the constitutional guarantee? Is there no way he can enforce his 'authority' to prevent the infringement of a fundamental right? In other words, is the 'authority" conferred upon by him by the Constitution unenforceable. Can he not call upon the concerned police officer to state before him whether the police have arrested a particular person, and if so, where is he now and why is he not produced before a Magistrate within 24 hours? We are of the considered opinion that the Magistrate is not helpless in the matter. Whenever a complaint is received that a person has been arrested within his jurisdiction more than 24 hours earlier, but has not been produced before a Magistrate or a complaint is made that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can, and should call upon the concerned police officer to' state, in the form of an affidavit, whether the allegations made by the complainant are true, and if so, on what and under whose authority he is being so held? The police officer or the other authority, as the case may be, shall have to state whether he has made the arrest, and if so, where the person arrested is available, or whether such person is being detained by him 'or by his subordinates. The officers must file such an affidavit within a day or two, since the required information is available with them, or can be gathered within a few hours. They may also produce the arrested person before the Magistrate forthwith, if not already produced before another Magistrate. The Magistrate shall thereupon either pass orders setting the arrested person at liberty, or pass appropriate orders in accordance with law depending on the facts of the case as he is indeed bound to do; (Madhu Limaye in Re: Air 1969 Sc 1014/1019). If the arrest or detention is denied and the complainant disputes the same, the Magistrate can also make an enquiry into the disputed question and pass appropriate orders.(See Poovan's case).

(6) As pointed out in the same case the Magistrate can always issue a search warrant as contemplated by Section 97 Cr. P.C. The power under Section 97 is independent of and distinct from the procedure and powers mentioned earlier as being implicit in and flowing from clauses (1) and (2) Article 22 of the Constitution. If a police officer or other authority is called upon to file a counter affidavit before a Magistrate and he refuses to file" the same, he would be guilty of criminal contempt of court within the 85 meaning of clause (c) of Section 2 of the Contempts of Court Act 1971. The refusal to file an affidavit or the filing of a false affidavit interferes or tends to interfere with the due course of any judicial proceeding or interferes or tends to interfere with the administration of justice, as ordained by the Constitution. In such a situation, the Courts can proceed under the Contempts of Courts Act,1971 in addition to other criminal or civil actions as the case may be.

(7) In Advocate General, Bihar vs. M.P. Khair Industries Chinnappa Reddy, J. referred to the provisions of Section 2(c) of the Consternates of Courts Act and adverted to Hallsbury's Laws of England (4th Edition)( Volume 9 para 38) to say that abuse of the process of court may be a punishable contempt. The said para 38 as per the Hallsbury's Laws of England reads as follows: "38. Abuse of process of court The court has power to punish as contempt any misuse of the court's process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly deceiving the court or the courts officers by deliberately suppressing afact, or giving false facts may be a punishable contempt".

(8) Hence, if a Police Officer files a false affidavit contempt proceedings can be taken. Reference is also to be made to Sections 190(1) and 156(3) of the Code of Criminal Procedure in this connection,apart from Article 22 of the Constitution. Section 156 Cr. P.C. empowers an officer in charge of the police station as also a magistrate, to investigate or to order investigation into an cognizable case. Once we recognize that detention beyond 24 hours is an offence punishable under Section 342 1.P.C. it would follow that when information is placed before a Magistrate that such an offence is, or is being committed,he can order the officer in charge of a police station to investigate the same. Offences under Section 342 is a cognizable offence. Where a complaint is made against an officer in charge of a police station , the Magistrate must be held to have the power to enquire into the allegation by himself and then pass appropriate orders. Similarly, S. 190 of Cr. P.C (clause (c) of sub-section (1) empowers a Magistrate to take cognizance of any offence upon information received from any person other than a police officer. As stated earlier, S.190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence. Magistrate can take notice of an allegation disclosing commission of a crime with a view to set the law in motion and to bring the, offender to book. The object is to ensure the safety of a citizen against the vagaries of 86 the police and by this giving him a right to approach the Magistrate directly, in cases where the police do not act according to law. Before the police takes cognizance of the offence, it should be open to the Magistrate to verify whether the information received by him is true or not. Such a power is again implicit in the very power to take cognizance, and the procedure indicated by us above is a procedure for verification. We are thus of the opinion that the provisions of the Code of Criminal Procedure, and in particular sub-section (1) of S. 190 as also sub-section (3) of S.156 do warrant and imply the above procedure(See Poovan's case).

(9) THEREFORE/WHENEVER a person suspected to be under illegal detention of the police, a Magistrate could issue a search warrant as contemplated under Section 97 of the Cr.P.C. in proper cases. The powers under Section 156(3) Cr.P.C. read with Section 190 Cr. P.C. are also available as stated above.

(10) By indicating the above procedure, we are not to be understood as saying that in appropriate cases,the parties cannot approach the High Court under Article 226 of the Constitution for issue of writ of habeas corpus. We are only pointing out that when the parties approach this court for writ of habeas corpus.the High Court is sometimes unable to give effective relief on account of the type of counters that are filed by the police in the High Court. We are only indicating that there is an additional and speedy remedy under the Cr. P.C. which could also be availed for achieving good results. While indicating the above said effective speedy remedy we respectfully follow the decision rendered by Jeevan Reddy, J.(as he then was) in the Ap Division Bench in M. Sudhakar v. Sub Inspector of Police (1986(1) Andhra Pradesh Law Journal 235) and we also follow the decision of the Kerala High Court in Poovan v. S.I. of Police 1993(1) Klt 454.

(11) The petitioner's right to take any such action is reserved.

(12) The writ petition is disposed of by indicating the above procedure.