* THE HON'BLE MR JUSTICE J.CHELAMESWAR AND THE HON'BLE MR JUSTICE D.APPA RAO +WP.No.23944 of 2006 % Dated 19-01-2007 # Kura Rajaiah @ K.Rajanna @ K.R., & others. PETITIONERS VERSUS $ Government of Andhra Pradesh, Represented by its Principal Secretary (Home) and 14 others., RESPONDENTS ! Counsel for Petitioners: MR. Chalakani Venkat Yadav, MR. Ch. Siddaiah MR. V.Gopinath ^Counsel for Respondents: Advocate General Mr. B.Adinarayana Rao for RR 7 to 15. <GIST: > HEAD NOTE: ? Cases referred 1. (1994) 3 SCC 440 2. (1976) 3 Cr App R 270 3. 1997(4) ALT 541 (DB) 4. 1969 (1) SCC 292 IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE J.CHELAMESWAR And THE HON’BLE SRI JUSTICE D.APPA RAO WP No. 23944 of 2006 Between : Kura Rajaiah @ K.Rajanna @ K.R., and four others .. Petitioners and Government of Andhra Pradesh Represented by its Principal Secretary (Home) and 14 others .. Respondents Dated : 19th January, 2007 JUDGMENT (per JC,J) This writ petition is filed by five petitioners with the prayer as follows : “For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble Court may be pleased to issue a Writ of Habeas Corpus or any other writ, order or direction more in the nature of Habeas Corpus, directing the respondents to produce the petitioners before this Hon’ble Court and set them at liberty and pass such other order or orders which this Hon’ble Court may deem fit, just and necessary in the circumstances of the case.” There are fifteen respondents who are officers of the State of Andhra Pradesh in the Police Department. The 1st petitioner claims to be the General Secretary of a political party known as CPI (ML) Janashakti party. The others are the followers of the 1st petitioner. The 2nd and 3rd petitioners are the natives of Andhra Pradesh, 4th and 5th petitioners are claimed to be the residents of Mumbai and Ranipur in Uttar Pradesh respectively. Admittedly all the petitioners gathered at Barabankhi of Uttar Pradesh for the purpose of attending a meeting of their party on 31.8.2006. Respondents 7 to 15 herein apprehended them and brought them to Andhra Pradesh in two vehicles and produced before Judicial First Class Magistrate (JFCM), Metpally, Karimnagar District. As to the manner of the apprehension of the petitioners at Barabankhi, there is some difference between the version of the petitioners and the respondents herein, the details of which will be discussed later. The petitioners were produced before JFCM, Metpally in connection with Crime No. 174 of 2006 of Metpally Police Station dated 1.9.2006 initially registered under Sections 143, 353, 224 r/w 149 IPC. The said offence came to be registered according to the respondents in the Metpally Police Station in the following factual background as per the version of the respondents: That the 3rd respondent herein constituted a special party consisting of respondents 7 to 15 headed by the 7th respondent for the execution of the NBWs issued in PRC Nos. 161 of 2005, 4 of 2005, 154 of 2005, 173 of 2005 and 169 of 2005 against the 1st petitioner herein issued an authorization to apprehend the 1st petitioner at Barabankhi of Uttar Pradesh. In pursuance of the said authorization, the respondents 7 to 15 proceeded to Barabankhi. On 31.8.2006, the said respondents located the 1st petitioner and when they tried to apprehend the 1st petitioner, the petitioners resisted. Therefore, the other petitioners also were apprehended and put them into two vehicles, rushed to Barabankhi Police Station, informed the local police regarding the apprehension of the petitioners and that they were being taken to Andhra Pradesh. According to the affidavit filed by the 7th respondent, the 7th respondent and his party along with the petitioners reached Venkatraopet village within the limits of Metpally Police Station on 1st September, 2006 at about 10.35 PM as one of the petitioners wanted to answer the calls of nature, the vehicles were stopped and taking advantage of the situation, the petitioners attempted to escape the custody, but they were subdued and taken to Metpally Police Station and handed them over to the 6th respondent, the Sub Inspector of Metpally Police Station along with a report on the basis of which the above mentioned Crime No. 174 of 2006 of Metpally Police Station referred to earlier was registered. Thereafter, the petitioners were produced before JFCM, Metpally on 2.9.2006 in connection with the above mentioned offence in Cr.No. 174 of 2006. The JFCM directed them to be remanded to judicial custody. The fact that the petitioners were produced before JFCM on 2.9.2006 is not in dispute. On the other hand, it is the case of the petitioners that when the respondents 7 to 15 sought to arrest the 1st petitioner the respondents did not inform the reasons for the arrest of the 1st petitioner nor was any warrant of arrest shown to the 1st petitioner. Therefore the arrest of the 1st petitioner was resisted by the others resulting in a scuffle. Thereupon, the police of Barabankhi apprehended both the scuffling parties and taken to Barabankhi police station and only after verifying the identity of the respondents 7 to 15 and getting confirmation from the State of Andhra Pradesh in that regard, the respondents 7 to 15 were allowed to take the petitioners along with them. The relevant portion of the petitioner’s affidavit reads as follows : “…. hearing the commotion, police from the police station which is opposite to the bus stand came running to the place and took all of us and respondents 7 to 15 to the police station. The police of Barabankhi were not convinced that respondent Nos. 7 to 15 belong to police of Andhra Pradesh since no identity was shown to them and kept all of us in the police station for some time. Meanwhile, the police contacted some one at Andhra Pradesh and when the police of Barabankhi received confirmation from their source that the other group who claimed that they are police are really police from Andhra Pradesh allowed them to take us along with them. They took us in two vehicles. They brought us to Metpally police station in Andhra Pradesh on 01.9.2006. After some time, they produced us before JFCM, Metpally, who remanded us to judicial custody.” It is the case of the petitioners that insofar as the petitioners 2 to 5 are concerned, as there was no crime registered against them at any point of time prior to the arrest and the police (respondents 7 to 15) concocted the story and created a crime which eventually came to be registered as Cr.No. 174 of 2006 of Metpally Police station. The relevant portion of the affidavit filed in support of the writ petition reads as follows : “… In order to produce us before JFCM Metpally, the police made a concocted a story that we tried to escape from the custody of the police, upon that they registered a crime against us and produced us before the Judicial Magistrate at Metpally. Yet another story of recovery was also created. From the fact that we were produced before the JFCM, Metpally, shows that there are no warrants pending against us and that no court issued warrants of arrest against us and that the police have come to Barabankhi in order only to execute those warrants….” It is the further case of the respondents that on production of the petitioners before the 6th respondent, a Crime No. 174 of 2006 was registered and during the course of investigation of that crime, the 5th respondent examined the petitioners and according to the affidavit filed by the 5th respondent each one of the petitioners confessed to the fact of each one of them were in possession of some weapons and explosives, the relevant portion of the 5th respondent’s affidavit reads as follows : “…the same was handed over to me for investigation, as the petitioner herein is involved in number of heinous offences like murders in the State of Andhra Pradesh. During the course of further investigation, I have examined the petitioner who is A1 in the above said crime and he revealed his name as Kurra Rajaiah @ K. Rajanna @ K.R., R/o Boinavada, Vemulawada and Central Committee Secretary of CPI ML Janashakthi and he has also further confessed that he is having one .32 pistol with 4 live cartridges and a cash of Rs.3.00 lakh which were kept in his bag. On the above confession, his bag was checked and found .32 pistol with 4 live cartridges and cash worth Rs.3.00 lakh with 500 denominations. He has also stated that he has extorted the above said money from various sources and the same were seized under the cover of panchanama in the presence of mediators. On examination, Yerramreddy Narasimha Reddy @ Satyam who is A2 in the above crime, confessed that he is the State Committee Secretary of CPI ML CP Janashakthi, and he is having HE (High Explosives) 36 hand grenade, 9 live rounds of 8 mm ammunition and party literature which were in his bag and the same was also seized under the cover of separate panchanama in the presence of mediators. On examination, Nambhi Narasimhaiah @ Ram Pullaiah, who is A3 in the above crime confessed that he is State Committee Member of CPI ML CP Janashakthi and he is in possession 20 electric detonators and party literature which was kept in his bag. The same was also seixed under the panchanama. On examination, Ramkishan Pawar @ Ram who is A4 in the above crime confessed that he is the State Committee Secretary of CPI ML CP Janashakthi of Maharashtra State and he is in possession 20 electric detonators and party literature. By saying so, he picked up his bag and handed over the above mentioned items to me and the same were seized under the cover of Panchanama. On examination, Ashok Kumar Rajputh who is A5 in the above crime confessed that he is District Committee Secretary of CPI ML CP Janashakthi of Biznur district of UP State and he in possession 8 live ammunition of 9 mm and party literature and the same were seized under the cover of Panchanama…” Basing on the above mentioned alleged confessions, the 5th respondent filed an application before the JFCM, Metpally requesting the JFCM to amend the FIR, the relevant portion of the Memo reads as follows : “Therefore the Hon’ble Court is requested to add section of law 506, 120(B), 124-A IPC, Section 7 of Criminal law Amendment Act, Sec 25(1)(B)(a) of the Arms Act 1959 and Sec 5 of ES Act 1908 to original section of law 143, 353, 224 r/w 149 IPC.” The petitioners challenged their custody although by judicial order dated 2.9.2006 on the following grounds : (1) that the arrest of the petitioners at Barabankhi is illegal as it is not in accordance with the procedure established by law; (2) the production of the petitioners before the JFCM, Metpally itself is illegal and consequently the order of the JFCM, Metpally directing the petitioners to be remanded is also illegal. The petitioners pleaded that there was a violation of Sections 41, 46, 50 and 50(A) of the Criminal Procedure Code thereby resulting in infringement of fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. Admittedly, except Cr. No. 174 of 2006 of Metpally Police Station there was no crime registered against the petitioners 2 to 5. At any rate nothing is brought on record to demonstrate that petitioners 2 to 5 are accused of any crime in the State of Andhra Pradesh or elsewhere. However, insofar as the 1st petitioner is concerned, the respondents case is that he is accused in five criminal cases which are numbered as PRC Nos. 161 of 2005, 4 of 2005, 154 of 2005, 173 of 2005 and 169 of 2005 and in each one of the PRCs warrants were issued by JFCM, Sircilla for the arrest of the petitioner. According to the respondents, the 1st petitioner is an accused in each one of the above mentioned PRCs of various charges including Section 302 IPC in four out of the five PRCs and an offence under Section 307 insofar as PRC No. 154 of 2005 is concerned. It is stated so in the affidavit filed by the 5th respondent. The respondents also filed Xerox copies of the warrants said to have been issued by the JFCM, Sircilla in connection with the above mentioned PRCs against the 1st petitioner. Though the learned Senior Counsel Sri Tarakam appearing for the petitioners disputes the existence of such warrants on the date of apprehension of the petitioners (31.8.2006), the Xerox copy of the warrant allegedly issued in connection with the PRC No. 161 of 2005 indicates that it was issued on 12.12.2006. Insofar as PRC No. 4 and 155 of 2005 were concerned, the Xerox copies of the warrants do not disclose any date. Insofar as the PRC Nos. 173 and 169 are concerned, they are apparently issued subsequent to the detention of the petitioners as they bear the dates 24.11.2006 and 7.10.2006 respectively. Article 21 of the Constitution guarantees every person a fundamental right not be deprived of his life or personal liberty except according to the procedure established by law. Article 22 confers another fundamental right on every person who is arrested i.e., a person arrested shall not be detained in custody without being informed the grounds for such arrest. It further mandates that such information shall be given “as soon as may be”. For the purpose of Criminal Procedure Code, offences are classified as cognizable and non-cognizable. The expression `cognizable offence’ is defined under Section 2(c) of the Code which reads as follows : (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; It can be seen from the said definition that a person accused of a cognizable offence can be arrested by a police officer even without a warrant. The expression `warrant’ is not defined in the Criminal Procedure Code. Chapter V of the Code of Criminal Procedure deals with the arrest and detention of persons and the procedure connected therewith. Section 70 to Section 81 of the Code deal with the warrants of arrest, form and procedure of issuing the warrants of arrest and the consequences of the issuance of the warrant etc. Under Section 70, a `warrant of arrest’ can be issued by a court in writing signed by the Presiding Officer. Such a warrant once issued remains in force until either it is cancelled by the Court who issued it or it is executed. Under Section 72, a `warrant of arrest’ is ordinarily directed to one or more police officers by the Court issuing the same and in case where no police officer is immediately available, the Court is also empowered to direct any person other than a police officer to execute such warrant. The other provisions dealing with the execution of warrants will be examined at the appropriate place in this judgment. Section 41 of the Code authorizes a police officer to arrest any person even without a warrant in the various contingencies contemplated under that Section which reads as follows: 41 When police may arrest without warrant (1) Any police officer may, without an order from a Magistrate and without a warrant, arrest any person,- (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who had escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Any officer-in-charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110. Corresponding old law Sections 54 (1) and S.55 of the Code of Criminal Procedure, 1898 (1) of the Code (V of 1898). Section 50 of the Code mandates that a person arrested without warrant shall forthwith be communicated the full particulars of the offence for which such a person is arrested. Section 50 reads as follows : 50 Person arrested to be informed of grounds of arrest and of right to bail (1) Every police officer, or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Corresponding old law.-The present section is a new provision. Section 51 empowers the search of the person arrested and authorizes the seizure of the articles found on the person.[1] Section 52 authorises the seizure of offensive weapons if any from the arrested person.[2] Section 55 authorises the police officer incharge of a police station to authorize any officer subordinate to him to arrest any person who may lawfully be arrested without a warrant. Such an authorization is required to be in writing specifying the person to be arrested and the offence for which such an arrest is required to be made. Section 55 also mandates that if a person is sought to be arrested by a police officer other than the officer incharge of a police station, the authorization issued under Section 55 by the officer incharge of the police station is required to be shown to the person sought to be arrested - if demanded. Section 78 and 79 deal with the warrants issued by a court which are required to be executed outside the jurisdiction of the court. Section 78[3] authorizes the Court issuing warrant to forward the warrant by post or otherwise to any Executive Magistrate or District Superintendent of Police etc., within the local limits of whose jurisdiction such a warrant is to be executed. Therefore Section 78 contains an exception to the general principle enunciated under Section 72 which we have already noticed. Obviously, Section 78 is to be invoked when it is known to the Court issuing warrant that a person accused before the said Court of an offence is available at certain place which does not fall within the local limits of the jurisdiction of the said Court. Section 79 deals with execution of warrants directing the police officers to arrest an accused in the process of investigation of the crime where such an arrest is required to be made beyond the local limits of the jurisdiction of the Court issuing the warrant. Section 79 stipulates that an officer executing the warrant shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer incharge of the police station within the local limits of whose jurisdiction the warrant is proposed to be executed. Sub-section (2) declares local police shall if so required assist the officer executing the warrant. However, sub-section (3) creates an exception to rules contained in sub-section (1) i.e., the requirement of obtaining the endorsement of either an Executive Magistrate or the local police officer is given a go-by if the officer executing the warrant has reason to believe resorting to such a procedure will prevent the execution of a warrant. It is in the light of the above mentioned provisions of the Criminal Procedure Code, the various grounds of attack in the writ petition are required to be examined. Admittedly, the petitioners were apprehended by the respondents 7 to 15 at Barabankhi on 31.8.2006 at about 13.30 Hours and brought to Andhra Pradesh and produced before the Judicial Magistrate of First Class, Metpally on 2.9.2006. In substance, the petitioners were arrested and produced before the Magistrate. The expression `arrest’ is not defined under the Criminal Procedure Code. The Supreme Court considered the import of the expression in Directorate of Enforcement v. Deepak Mahajan and another[4] and held as follows : “The word `arrest’ is derived from the French word `Arreter’ meaning “to stop or stay” and signifies a restraint of the person. Lexicologically, the meaning of the word `arrest’ is given in various dictionaries depending upon the circumstances in which the said expression is used. The word `arrest’ when used in its ordinary and natural sense means the apprehension or restraint or the deprivation of one’s personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of hs personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence.” See also Spicer vv. Holt[5]at page 277 From the counter affidavits filed by respondents 7 to 15, it is the case of the respondenst that the 1st petitioner was arrested in execution of the NBW referred to earlier and the petitioners 2 to 5 were arrested because they obstructed the respondents 7 to 15 while they were arresting the 1st petitioner. The 7th respondent in his affidavit at para (3) in this regard stated as follows : “…. We have identified the 1st petitioner and took in to custody by informing that five N.B.Ws were pending against him in Karimnagar District. The other four persons, petitioners 2 to 5 herein, who were accompanying the 1st petitioner, obstructed us in discharge of our duties. On that, suspecting them to be extremists, took them also into custody along with their baggage’s, ….” As we have already noticed, Section 41(1)(a) authorizes any police officer to arrest any person even without a warrant, if such a person sought to be arrested has been concerned in any cognizable offence etc. It is the case of the respondents which we do