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Judgment
B.B. Deb, J.—This revision petition is directed against the order dated 06.04.2001 passed by the learned Sub-Divisional Judicial Magistrate, Sabroom in case No. NGR 97/2001 u/s 41(1) of CrPC and also for quashing the aforesaid proceeding.
The case leading to the present revision petition may be summarised as under:-
According to the revision petition, the petitioner was brought to Manubazar Police Station under South Tripura District for interrogation on 29.3.2001 under arrest and in the plea of interrogation he was physically tortured by the Police and forwarded to the Court of learned Sub-Divisional Judicial Magistrate only on 2.4.2001 showing his arrest on 2.4.2001 though virtually he was detained under Police custody since 29.3.2001. Though there was no specific case registered against the petitioner, the Police without any reason alleged that the petitioner was a collaborator of NLFT (an extremist militant organisation in Tripura). On 2.4.2001 being moved with a bail petition the learned Sub-Divisional Judicial Magistrate allowed the petitioner to go on bail, but the court imposed a condition to appear before the Officer-in-charge, Manubazar Police Station once a week until next report. The accused was released accordingly on bail. Thereafter the Officer-in-charge. Manubazar Police Station received a requisition from Baikhora Police Station for causing arrest of the petitioner in connection with Baikhora Police Station Case No.17/87 u/s 364A/302/201 of IPC and also u/s 27 of the Anns Act.
On receipt of the said requisition, the O/C, Manubazar Police Station filed a petition before the learned S.D.J.M. and the learned SDJM passed an order on 6.4.2001 reminding the O/C, Manubazar P.S. that he would at liberty to make him arrest at once and shall forward him before the court giving information to O/C, BKR P.S. and on 11.4.2001 the learned S.D.J.M. again issued a notice upon the surety of the accused for production of the accused before the court on 30.4.2001.
The following points raised to be resolved in this Criminal Revision: -
Whether a person arrested u/s 41(1) of the CrPC could be forwarded with a prayer for keeping him in detention and whether the Magistrate is authorized under law either to detain the arrestee or ask for bail?
On a careful perusal of the provision of Section 41(1) of the CrPC it reveals that a police officer regardless of the rank may arrest any person without warrant of arrest being issued by any Magistrate on the happening of one or other contingencies categorised in Clause (a) to (f) of the said Section 41(1) of CrPC and in view of Section 57 of the CrPC no such arrested person could be detained for more than 24 hours unless otherwise directed by a Magistrate u/s 167 of CrPC. During the said period of 24 hours detention the arrestee could be interrogated by the competent Police Officer to ascertain his involvement in connection with any cognizable case.
Only in the event of a cognizable offence having been revealed to have been committed or suspected to have been committed by the said arrestee the authorised police officer must record the information in the G.D. book and commence with the investigation as envisages u/s 157(1) of CrPC. In case the investigation could not be completed within 24 hours from the time of arrest and there appears some foundation to believe that the arrestee is involved in the commission of any cognizable offence the entries of the copies of the diaries maintained u/s 172 of CrPC shall be transmitted to the nearest Judicial Magistrate and if the accused is not bailed out in the meantime from the Police Station, the Investigating Officer must forward the accused to the nearest Judicial Magistrate and in absence of/non-availability of the Judicial Magistrate to the Executive Magistrate concerned and thereafter, the Magistrate is to deal with the matter relating to custody or bail, as the case may be, of the accused forwarded under arrest.
Section 41(1) CrPC never deal with an "accused", but a "person", because at that point of time no acquisition specific or otherwise has been received by the police against the arrestee and only on foundation of some accusation of the commission of cognizable offence during investigation u/s 157(1) of CrPC the arrestee is turned to be an "accused" and could only be forwarded u/s 157(1) of CrPC.
In case the accused is involved with a bailable offence he must be released on bail as contemplated u/s 436(1) of Cr.P.C. and in case of non-bailable offence he may be dealt with accordingly u/s 437 of the CrPC.
Therefore, it reveals from the scheme of Chapter XII of the CrPC that the commencement of investigation u/s 157(1) of Cr.P.C. must be proceeded, by a recorded FIR or recorded information otherwise, as to the commission of cognizable offence and unless the investigation is in progress no accused arrested during investigation could be produced before the court I/S. 167(1) of Cr.P.C.
The provision of Section 167(1) of Cr.P.C. postulates that in case the investigation regarding a cognizable case could not be completed within 24 hours from the time of the arrest of an accused the competent police officer conducting the investigation "shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate".
The Investigating Officer is under statutory obligation to transmit the copies of the entries of the case diary followed by forwarding of an accused under arrest enabling the Magistrate to ascertain justification of the arrest and involvement of the arrestee in connection with a specific offence bailable or non-bailable.
Under the aforesaid legal position. It remains abundantly clear that in no case a person arrested u/s 41(1) of Cr.P.C. can be levelled with the term "accused" nor could he be lawfully forwarded under arrest u/s 167(1) of CrPC and thus no Magistrate (Judicial or Executive) can assume legal jurisdiction to deal with the matter relating to custody of such person.
From the forwarding report dated 2.4.2001 it appears that the O/c, Manubazar P.S. forwarded the present petitioner under arrest u/s 41(1) of CrPC without having made any disclosure as to the commission of any specific cognizable offence and the learned SDJM passed the order having levelled the term "accused" upon the petitioner and directed to release the petitioner on furnishing a bail bond with one surety putting further condition of his appearance before the O/C, Manubazar P.S. once in a week vide order dated.2.4.2001. That order of the learned Magistrate by which the petitioner, of course, Was released qn bail putting condition requiring his appearance before the O/C, Manubazar P.S. ''once in a week'' appears to be Inconsistent with the very scheme of the related provisions of Code of Criminal Procedure.
The O/C, Manubazar P.S. out of innocence, ignorance or otherwise without commencement of the investigation as contemplated u/s 157(1) of CrPC forwarded the petitioner under arrest without having transmitted the copies of the entries of the diary and as such the forwarding of the accused under arrest u/s 41(1) of CrPC itself appears to be without sanction of any valid law and the learned Magistrate also committed error in law by entertaining such accused and issuing such order as stated above and as such the order passed by the learned Magistrate deserves to be quashed.
Despite the legal position is very much intelligible, some or other Police Officer either on bona fide error or otherwise used to adopt such unwarranted procedure having adversely affected the liberty of an individual. This should not be allowed to continue any more in view of Article 21 of the Constitution of India.
However, in case any Magistrate comes across such unwarranted happening the course open to him is to directly discharge the arrestee and only in exceptional circumstances having considered the involvement of the arrestee if available in forwarding report, the arrestee may be asked to furnishes any bail bond with or without any surety so as his appearance should be ensured as and when called for in connection with any specific case revealed at any subsequent stage. But in no case, the Magistrate could attach any condition to be performed by the arrestee in his bail bond. The Magistrate should keep in mind that in such unwarranted circumstances the discharge of the arrestee is a rule and asking for bail bond Is an exception.
In that view of the matter, the entire proceeding pending before the learned S.D. J.M. Sabroom South Tripura in case No. NGR 97/ 2000 including all the orders passed thereunder stands quashed.
With the observations and directions this revision petition stands disposed of.