MALEDATH BHARATHAN MALYALI Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) This is an application under Section 491, Criminal P. C., and the facts that give rise to this application are very striking and very significant. A public meeting was held at Lal Baug on the evening of 8th May 1949. The meeting was held under the auspices of various organisations and it was in connection with a hunger-strike that had been undertaken by certain detenus on 2nd May 1949. After the public meeting broke up, a procession was organised and the procession marched from Lal Baug to the Delisle Road maidan. There was an order of the Commissioner of Police banning all processions in that locality after 7 p.m., and the procession was taken out in contravention of the order of the Commissioner of Police. The police tried to stop the procession, but the processionists insisted on going on; thereupon a lathi charge was made, the Police had also to resort to firing, and the processionists dispersed helter-skelter. Fortythree persons were arrested on the spot, and about twenty-two persons were arrested subsequently. The applicant before us is alleged to have been one of those persons who took part in the procession and who was arrested on the spot. An order was made against the applicant on 9th May 1949, by the Superintendent of Police to the effect that he had been arrested on 8th May 1949 under Sub-section (AI) of Section 2, Bombay Public Security Measures Act, 1947, and he should be committed to jail custody for a period of 15 days from the date of arrest. Another order was made by the Commissioner of Police, who was then Mr. Chudasama, on 20th May 1949, under Section 2 (1) (a) of the Act, directing that the applicant should be detained as the Commissioner was satisfied that he was likely to act in a manner prejudicial to public safety and the tranquillity of Greater Bombay, and the grounds for his detention were supplied by the Commissioner of Police on 25 June 1949; the grounds were that he did organise and participate in Greater Bombay in an unlawful processions of persons armed with daggers, lathis, bulbs containing acid and other missiles, and which procession committed acts of violence against police officers, and that he was likely to organise and participate in Greater Bombay in such processions and commit acts of violence in such manner. Therefore, according to the Police Commissioner, he was likely to act in a manner prejudicial to the public safety and the tranquillity of Greater Bombay.

(2.) It appears -- and I shall presently deal with this aspect of the case-- that investigation with regard to the offence committed by the, applicant of being a member of the unlawful assembly and of committing a breach of the order of the Commissioner of Police was commenced on the very day that the detenu was arrested ; and although this investigation was commenced on that day and was continued thereafter, the applicant was not put up before any Magistrate and the charge-sheet with regard to the offence was only presented to the Magistrate on 1st November 1949, and it was only for the first time on 12th December 1949, that the applicant was produced before a Presidency Magistrate. Now, the Criminal Procedure Code and the City of Bombay Police Act contain important safeguards in favour of a subject when he has been arrested and when investigation into the commission of an offence is being carried on by the police authorities. The first and the most important safeguard is that he must be produced before a Magistrate within 24 hours of his arrest, and it is only under an order of the Magistrate that he can be recommitted to custody, and from time to time he has got to be produced before the Magistrate and the Magistrate has got to be satisfied that for the purposes of investigation the accused should be committed to custody. In other words, once a person is arrested in connection with an offence, the whole investigation by the police is carried on under the supervision of the criminal Court. It is hardly necessary to emphasise how important and vital that safeguard is to the subject. The Police are not left at large to carry on the investigation in any manner they like ; it is not left open to them to detain the accused as long as they like, but at every step of the investigation the criminal Court supervises the investigation and passes orders from time to time. It is also important to note that it is for the Magistrate to decide, if a bail application is made by the accused whether he should be enlarged on bail or should be recommitted to police custody. Therefore, we have this patent fact in this case, that although investigation into commission of the offence was being carried on from 8th May 1949, every safeguard under the Criminal Procedure Code was violated and not given effect to : the accused were never put up before a Magistrate, no remand applications were made and the accused were never given an opportunity to apply for bail if they so intended to do.

(3.) Now, it is necessary to consider, in the first place, under what circumstances this applicant came to be arrested. In the order made by the Superintendent of Police on 9th May 1949, it is stated that the applicant was arrested on 8th May 1949, under Sub-section (A1) of Section 2, Bombay Public Security Measures Act. Therefore, the position taken up by the Superintendent of Police was that the arrest of the applicant was under the Security Act and that he was arrested in the interest of public security. When we turn to the affidavit made by the Superintendent of Police in these proceedings, the position seems to be entirely different. In his affidavit made on 13th January 1950, the Superintendent, Mr. Parab, says: