(1.) By way of the instant petition under Article 226 of the Constitution of India, petitioner Alok Kumar Dwivedi impugns his arrest and seeks relief of setting him at free as also a direction to the respondents/State for payment of compensatory cost to him. Facts of the case, as projected by the petitioner, in brief, are that the petitioner is a resident of Shiwanand Nagar, P.S. Khamtarai, District Raipur (Chhattisgarh) and originally resident of Village Manapur, District Jaunpur (Uttar Pradesh). On 9-6-2011, at 4 P.M., the petitioner was arrested by the police of Police Station, Gol Bazar, Raipur. On that very date, within an hour of the arrest, at 5 P.M., information of the arrest of the petitioner was given by the father of the petitioner, i.e., next friend, from Mirzapur (Uttar Pradesh) to respondents No. 2 to 6 through a telegram (Annexure P-2). From the time of arrest of the petitioner till his lodging to jail, he was not disclosed reason, ground or substance of the offence for which he was arrested by arresting police officer/respondent No. 5 or even by the Judicial Magistrate, First Class, Raigarh/respondent No. 7. Without showing or disclosing any warrant of arrest to the petitioner, the arresting officer arrested the petitioner in open market of Raipur in presence of his friend, Sohan. The petitioner's friend Sohan sought to know about arrest of the petitioner, but he was abused and threatened by the police officials, due to which, he ran away therefrom. After the arrest, the petitioner was brought to the Police Station, Gol Bazar, Raipur, where he was kept in the police lock-up. Even there, the petitioner was not disclosed the reasons or ground for which he was arrested by the arresting officer. The petitioner was kept in the lock-up of Police Station Gol Bazar, Raipur from 9-6-2011 to 10-6-2011 for about 20 hours. No Court has issued any valid warrant of arrest of the petitioner under Second Schedule, Form No. 2 Cr.P.C. Thus, without there being any valid warrant issued by a Court, the petitioner was arrested on 9-6-2011 in violation of provision of Section 70 Cr.P.C. The petitioner was arrested by the police officer in violation of the provisions of Sections 50 and 50-A Cr.P.C. Provision of Section 50-A Cr.P.C. is in conformity with Article 22 of the Constitution enabling the person arrested to move a habeas corpus for his release. It confers valuable right, and non-compliance of its mandatory provisions amounts to violation of the procedure established by law. Respondents No. 5, 6 and 7 have violated the provisions of Sections 50 and 50-A Cr.P.C., which amounts that detention of the petitioner is illegal as well as it is in violation of Article 22 of the Constitution of India, therefore, a writ of habeas corpus may be issued in favour of the petitioner for his release. On 10-6-2011, i.e., on next day of the arrest of the petitioner, Sohan got an application moved before the Chief Judicial Magistrate, Raipur for calling a report from the Police Station, Gol Bazar, Raipur regarding arrest of the petitioner and on that very date, the learned Chief Judicial Magistrate, Raipur ordered for submission of a report about the arrest of the petitioner on 13-6-2011. On 13-6-2011, respondent No. 5 did not submit any report about the arrest of the petitioner. The learned Chief Judicial Magistrate, Raipur, thereafter, summoned respondent No. 5 to appear in his Court in person on 14-6-2011 (Annexure P-3). On 14-6-2011, respondent No. 5 appeared before the learned Chief Judicial Magistrate, Raipur in person and informed him that the petitioner was arrested by Head Constable No. 216 of Police Station Chakradhar Nagar, Raigarh under a warrant of arrest. It is clear that the petitioner was arrested at Raipur and he was kept in the lock-up of P.S. Gol Bazar, Raipur. Respondent No. 5 suppressed the truth of the arrest of the petitioner as also the date, time and place of his arrest. From the order-sheet recorded by the learned CJM, Raipur on 14-6-2011, it appears that there is violation of provision of Section 78 Cr.P.C. The petitioner was wanted by Raigarh Police but he was arrested by Raipur Police at Raipur without following the mandatory provisions of the Code of Criminal Procedure, 1973, therefore, his arrest is illegal. The Head Constable was not authorized to arrest the petitioner under any law as he had no authority or empowered legally to come Raipur from Raigarh and arrest the petitioner at Raipur. No warrant can be directed even to a police officer to be executed beyond the local jurisdiction of the Court. The Court shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer-in-charge of a police station within the local limits of whose jurisdiction warrant is to be executed. There is violation of provisions of Sections 80 and 81 Cr.P.C. The action and procedure of arrest is unfair and mala fide. The petitioner was kept in the lock-up of P.S. Chakradhar Nagar, Raigarh from 10-6-2011 to 11-6-2011. On 11-6-2011, at about 2 P.M., the petitioner was produced before Judicial Magistrate First Class, Raigarh. The learned Judicial Magistrate First Class, Raigarh did not disclose substance of the offence for which the petitioner was arrested. The arresting police officer and the learned Judicial Magistrate First Class, Raigarh violated the mandatory provisions of the Code of Criminal Procedure, 1973, therefore, the detention of the petitioner is illegal and a writ in the nature of habeas corpus requires to be issued against respondents No. 1 to 6.
(2.) Shri Ramesh Chandra Shukla with Smt. R.K. Singh, learned counsel for the petitioner argued that the arrest of the petitioner is illegal and in contravention of provisions of Sections 41, 41A, 41B, 41C, 41D, 46, 50, 50A, 54, 56, 57, 60A, 70, 74, 75, 78, 79, 80 and 81 of the Code of Criminal Procedure, 1973 and, therefore, the petitioner may be set at free. The cause of arrest has not been disclosed to the petitioner till date. Learned counsel has reiterated the grounds taken by him in the petition as arguments. Learned counsel placed reliance on Joginder Kumar v. State of U.P. and others, 1994 AIR(SC) 1349. Lallubhai Jogibhai Patel v. Union of India and others, 1981 AIR(SC) 728, Ashok and others v. The State, 1987 CrLJ 1750, Govind Prasad v. The State of West Bengal, 1975 CrLJ 1249. In the matter of Madhu Limaye and others, 1969 AIR(SC) 1014, and Buddha Singh v. State of U.P.,1997 35 ACC 110.
(3.) Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/Respondents No. 1 to 6 argued that Crime No. 401/2009 under Sections 408 and 420 read with Section 34 IPC was registered against the petitioner in the Police Station, Chakradhar Nagar, Raigarh, in which the petitioner was absconding. A challan was filed before the Judicial Magistrate, First Class, Raigarh mentioning the petitioner as absconding. The Judicial Magistrate, First Class, Raigarh issued a warrant of arrest against the petitioner. The said warrant was executed at Raipur on 10-6-2011. The petitioner was arrested in execution of the warrant of arrest, therefore, there was no need of production of the petitioner before the local Magistrate. The petitioner had also filed an application under Section 57 Cr.P.C. before the Chief Judicial Magistrate, Raipur. The learned Chief Judicial Magistrate, Raipur had rejected the application, having become infructuous. The arrest of the petitioner is not illegal but was lawful as it was in execution of the warrant of arrest issued by the competent Court. He further argued that the petitioner had approached this Court earlier also and filed Writ Petition (H.C.) No. 3141/2011, which was dismissed by this Court vide order dated 27-6-2011. The petitioner has been legally arrested under the order of the competent Court. The petitioner has alternative remedy under Sections 437, 439 Cr.P.C. as also under Section 482 Cr.P.C., therefore, the instant petition seeking a writ in the nature of habeas corpus is not maintainable and liable to be dismissed.