OM PRAKASHA GUPTA Vs. STATE

JUDGEMENT

(1.) THIS is an application Under Section 491, Criminal P. C. to issue an order in the nature of Habeas Corpus to produce the body of the petitioner who is now in the custody of the Commissioner of Police, Madras, and to set him at liberty.

(2.) THE petitioner was arrested by the Inspector of Police, Intelligence Section, Madras City Police, on 22nd February 1949 and was produced by him before the Commissioner of Police on 23rd February 1349 and was remanded to custody for a period of 10 days. The arrest as appears from the affidavit filed by the In. Epector of Police was made Under Section 151, Criminal P. C. That section reads as follows : A police officer knowing o a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the personso designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. This section, it must be noted, occurs in the chapter, headed "preventive action of the Police", and was designed to prevent the commission of offences by arresting the person beforehand.

(3.) THE contention urged on behalf of the petitioner is that the arrest Under Section 151, Criminal P. C. is illegal as the police officer had no information or facts before him to conclude that the petitioner entertained a design to commit a cognizable offence, and, further, that it was possible for the police officer to have prevented the commi33ion of an offence by other methods. The affidavit of the Inspector of Police filed today clearly states that the Commissioner of Police received instructions from the Superintendent of Police, Special Branch, C. I. D,, Madras, under instructions from the Deputy Commissioner of Police, Special Branch, Bombay, to arrest the petitioner Under Section 151, Criminal P. C. He adds that after satisfying himself that the petitioner was designing to commit a cognizable offence, he had arrested the petitioner on 22nd February 1949 and produced him before the Commissioner of Police on 23rd February 1949 who remanded him to custody. The section, it will be seen, authorises a police officer to arrest if he had knowledge that the person sought to be arrested entertained a design to commit a cognizable offence. It must also further appear to the police officer that the commission of the offence could not be otherwise prevented. Both the "knowledge" and the "appearance" are those of the police officers concerned and are not capable of an independent investigation. If the police officer had authority Under Section 151, Criminal P, 0,, to arrest the petitioner, which un-deucedly he has, it is not open to this Court exercising its jurisdiction Under Section 491 to go into the question whether, in fact, the police officer was justified in concluding that the person sought to be arrested was about to commit a cognizable offence and whether the police officer was squally justified in concluding that there were no other means by which the perpetration of the offence could have been prevented. The discretion is vested solely in the police officer and that discretion cannot be questioned or canvassed in a proceeding Under Section 491, Criminal P. C. The object of the section is to prevent the commission of an offence whiah:a person designs or intends to commit. The facts are not capable of investigation in order to find out whether, in fact, a cognizable offence was intended to be committed or not, as the offence would still be at the stage of an intention and has not passed into the region of facts. There is nothing there-, fore on the face of the record to show that the arrest was illegal or improper within the meaning of Section 491 (1) Clause (b), Criminal P. C.