RAM VIBHUTI SINGH Vs. SUPERINTENDENT DISTT JAIL FAIZABAD

JUDGEMENT

(1.) K. Narayan, J. The petitioner has approached this Court for a writ of habeas corpus and a direction for his release on the ground that his detention has been illegal, unconstitutional and unwarranted by the law of procedure. He had also desired, of course, as an interim relief, his release on bail in the matter of case crime No 151 of 1994, Police Station Gosaiganj, district Faizabad, under Sections 147, 148, 307 and 302 read with Section 148, IPC.

(2.) THE facts giving rise to the present petition, are that the petitioner was arrested by Shri D. D. Shukla, Sub-Inspector of Police and Station Officer, Police Station, Gosaiganj at 2. 30 p. m. on 26-9-1994, for his alleged involve ment in a case registered at crime No. 176 of 1994, under Sections 352, 504 and 506, IPC. Since he was also said to be involved in the matter of crime No. 151 of 1994, the investigation of which had already been transferred to CBCID under some orders of the Government, an information about the arrest was sent to said office at Gorakhpur possibly on (sic) one. Consequent upon that Shri Shiv Ratan Singh, an Inspector of the said department at Gorakh pur, rushed to Gosaiganj. It may also be mentioned here that a few more persons, namely, Verendra Singh, Sesh Kumar Singh and Brahma Dutt Singh were also arrested on the same day simultaneously in the matter of case crime No, 176 of 1994 and detained for offence of case crime No. 151 of 1994. Though the matter in respect of them may be the same, the details need not be gone into hero. THE Inspector interrogated the accused persons who were already in the lock up and, thereafter, two challans were sent simultaneously on 27-9-1994 one in respect of crime No. 151 of 1994, and other in respect of crime No. 176 of 1994 by Shri Shiv Ratan Singh and Shri D. D. Shukla respectively.

(3.) IN order to consider the submissions in the matter of arrest and then application of Section 50, Cr. P. C. and Article 22 (1) of the Constitution facts may be arrived at. The contention of the petitioner has been that he was never told the grounds of his arrest as directed by the above said two provisions while on the contrary, the contention of the State has been that he was so explained. The question is as to whether this positive fact, of which burden could be only upon the State was at all proved. The officer, who had arrested was Sri Dhruv Dev Shukla and he has filed an affidavit wherein it was stated in para 4 that the petitioner was informed of the offence that was committed by him in detail at the time of arrest, and all facts that were con veyed were recorded in the general diary No. 15 at 17 p. m. on 26-9- 1994 when the petitioner was lodged in the lock up. It is remarkable that though Sri D. D, Shukla was himself the arresting officer, this para has been verified not from the personal knowledge or even belief but on the basis of record, that is, general diary. The contents of the general diary will be mentioned later but a more important aspect remains that it prove who has, according to the entries in the general diary conveyed the fact is unable to state about them as a matter of fact from his personal knowledge. Of course in the writ jurisdiction the matters are not to be weighed with the same measures as they are in regular trials but certain aspects cannot be lost sight of. Under Section 3 of the Evidence Act, books maintained in regular course of business can be a corroborative evidence in their nature, they cannot form a substantive piece of evidence. On the contrary in the present case, though substantive piece of evidence could have been tendered and though the who could have tendered it has not been sworn the affidavit on personal knowledge and has withheld or avoided the narration as a fact and the entry in the General Diary has been relied upon.