1. This is an application for the issue of a writ of habeas corpus for releasing the petitioner Gaibidingpao Kabui from Jail custody.

2. This petitioner and two others, Kadonglung and Namei were arrested on 12-8-1961 near Jameng-long by the Army and they were produced before Shri K. Lamphel Singh, Magistrate 1st Class at Imphal on 17-8-1961 with a letter from the O/C Impbal Police Station. In She said letter, it was mentioned that they were Naga Hostiles of the area and were arrested by the Army, that the O/C Tamenglong and Nungba Police Stations have been Page: 452asked to submit N.F.I.R under Sec. 109, Cri. P.C for prosecution and that they may be remanded to Jail of a period of 15 days, during which the N.F.I.R will be submitted. The Magistrate thereupon remanded them to Jail custody till 30-8-1961. On 24-8-1961, the petitioner Gaibidingpao Kabul sent a petition to the Magistrate from jail Stating that he was a cultivator and innocent of any Offence and that a Police Report may be immediately called for and he may be released. This petition was sent for a Police report by 30-8-1961. The O/C I.P.S endorsed a report on the said petition on 30-8-1961 that the village from where the petitioner was arrested was within the jurisdiction of Nungba Police Station and so the O/C Nungba Police Station may be directed to submit the necessary prosecution report. The petitioner and the two others were produced before the Magistrate with this report and the Magistrate again remanded them to custody till 13-9-1961 and in doing so fee passed an order in the following words;

“Ask O/C concerned to submit an offence fa-port”.

3. On 13-9-1961, they were again produced before the Magistrate and he passed an order that no offence report has yet been submitted, nor any report for further remand, that there has been serious objection from the side of the arrested persons and that the O/C Imphal Police Station will be directed to submit a report by the next remand date at any rate and that the arrested persons will be remanded till 27-9-1961 and he directed that a copy of the order should be sent to the Additional Superintendent of Police for necessary action. On 27-9-1961, they were again produced before the Magistrals without any offence report and the Magistrate again remanded them till 11-10-1961 saying that the I/O will be asked to submit the offence report early.

4. After this further remand, a letter was received by the Court from the S.I of the Imphal Police Station stating that the O/C Tamenglong and Nungba Police Stations have been asked to submit offence report against the arrested persons and that report had also been submitted to the Court praying for directing the Police Stations concerned to submit necessary reports.

5. On this letter, an endorsement had been made by the O/C, Imphal Police Station stating that it was beyond the competence of the Imphal Police Station to submit a prosecution report in the case as the place of occurrence was beyond Imphal Police Station and that therefore the Police Stations concerned may be directed to submit the necessary prosecution report. Thus, the O/C Imphal Polios Station was throwing the burden on the Court for getting the necessary offence report from the Tamenglong and Nungba Police Stations concerned. On receipt of this letter, the Magistrate wrote on the order sheet that be has received the report for further remand. Thus, the three arrested persons continued in Jail custody without any offence report from the Police and without the Court knowing why they were being remanded. It is surprising that the Magistrate should have continued to remand me arrested persons to police custody in this fashion.

6. It was at this stage that the petitioner Gaibidingpao Kabui filed the present application for the issue of a writ of habeas corpus before this Court on 22-9-1961 in which he pointed out that his arrest itself was done mala fide without any F.I.R or any other information and without his being informed of the grounds for his arrest and detention in Jail. It was pointed out that the arrest was illegal and in contravention of the provisions of the Cri. P.C, that his detention was against the provision of section 167, Cri. P.C, that the remand orders were being passed by the Magistrate without any jurisdiction and without recording any reason and that such detention was against the fundamental rights of the petitioner.

7. When this matter came up for hearing of the bail application on 29-9-1961, I directed the petitioner to be released on bail immediately, as there was no reason for his detention. When the writ application for habeas corpus came for bearing, the Government Advocate wanted time to file counts but he admitted that as the petitioner was being proceeded against only under section 109, Cri. P.C there was no provision for detention in Jail and so on 15-12-1961 I directed the petitioner to be released, I also directed the two persons Kadonglung and Namei to be released from Jail. But final orders were not passed as I was awaiting the explanation of the Magistrate for having continued to remand the arrested persons to Jail custody continuously even without any request from the Police.

8. A counter statement has been filed, for the Government in which it is stated that the petitioner and the other two persons were arrested by (ho Military in exercise of the power under Sec. 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958, that they were produced before the Magistrate by the O/C Imphal Police Station with a report that the O/C Tamenglong Police Station in whose jurisdiction the petitioner was arrested would submit prosecution report for proceeding under Sec. 109, Cri. P.C, that in respect of the petitioner, the said prosecution report was duly submitted on 28-8-1961 before the A.D.M, Manipur instead of before this Magistrate, that he said case has been registered under N.F.I.R 1/61 and it stands transferred to the Court of Shri B. Ahamad, Magistrate First Class for disposal, and that as far as the report regarding the other two persons were concerned, vigorous search is been made to see if any report has since been submitted.

9. I am afraid that the counter statement filed for the respondent does not disclose anything which would in any way support the procedure adopted by this Magistrate against the petitioners and the other two persons. It is stated that the arrest of the three persons was made by the military under section 4(c) of the Armed Forces (Assam and Manipur) Special Powers Act, 1958 (hereinafter to be referred to as the Act). Such arrest can be made under Sec. 4(c) by the Army of a person who as either committed a cognizable offence or against whom a reasonable suspicion existed that he that Page: 453committed or is about to commit a cognizable offence. As soon as such arrest is made, the Army have to make over the arrested person, under Sec. 5 of the said Act, to the O/C of the nearest Police Station together with a report of the circumstances occasioned in the arrest.

10. In this case, the army made over the petitioner to the O/C, imphal Police Station and I am sure that they must have submitted the report of the circumstances occasioned in the arrest as required under Sec. 5. That report has not been produced. Hence we are unable to know the circumstances which led to their arrest. We do not know therefore whether the petitioner and the two others were reported to have committed a cognizable offence or whether a reasonable suspicion existed that they have committed or were about to commit a cognizable offence. The report of the O/C Imphal Police Station to the Court was that the 3 persons were Naga Hostiies and that the O/C Tamenglong and Nungba Police Stations have been asked to submit N.F.I.R under section 109, Cri. P.C for prosecution. This report did not show what cognizable offence the 3 persons had committed or what reasonable suspicion existed that they have committed or were about to commit a cognizable offence.

11. If we compare section 4(c) of the Act with Sec. 54(1) First and Sec. 151, Cri. P.C it will be seen that the provision for the arrest under Sec. 4(c) of the said Act is similar to the provision under Sec. 54(1) First and Sec. 151, Cri. P.C Under section 54(1) First Cri. P.C, there must be reasonable complaint or credible information or reasonable suspicion that the person has been concerned in any cognizable offence. Under Sec. 151, Cri. P.C the arrest is to prevent the commission of a cognizable offence. In both those cases, there has to be investigation and the arrested person has to be produced before a Magistrate under Sec. 167, Cri P.C if his detention is desired pending the investigation. In such a case, ordinarily action under section 109, Cri. P.C is not contemplated. J If we read Sec. 55, Cri. P.C and Sec. 109, Cri. I.P.C together, it will be seen that vagabonds habitual robbers etc. could be arrested under section 55, Cri. P.C and they can be proceeded against under Sec. 109, Cri. P.C The provision for arrest, under Sec. 55 by the Police is quite different from the provision for the arrest under Sec. 54(1) First and Sec. 151, Cri. P.C It is only if the arrest is made under Sec. 55 that the question of proceeding against the arrested person under section 109, Cri. P.C would arise. But the provision for arrest by the Army under Sec. 4(c) of the Act is not similar to the provision for the arrest under Sec. 55, Cri. P.C

12. When a person is arrested under Sec. 4(c) of the Act and handed over to the Police or when a person is arrested by the Police under Sec. 54(1) First or under Sec. 151, Cri. P.C he has to be produced before a Magistrate under Sec. 167, Cri. P.C with a copy of the entries in the diary relating to the case and the Magistrate must proceed under section 167 and decide whether he should be remanded or not pending Police investigation.

13. In our present case, no diary relating to the case was submitted at all, except the report which I have already referred to. It was the duty of the Police Officer to have produced in Court the report given under Sec. 5 of the Act by the Military. That was not done, evidently, because no further Police investigation regarding the commission of any cognizable offence was contemplated, but only action under Sec. 109, Cri. P.C Thus this is a case where the Police treated the arrest as one under Sec. 55, Cri. P.C In such a case when the arrested person is produced before the Magistrate under Secs. 61 and 167, Cri. P.C, no question of his detention us Jail would arise at all there is no provision under Sec. 109, Cri. P.C to detain a person in Jail pending proceedings under the said section. If a person is produced before a Magistrate for action under Sec. 109, Cri. P.C, what the Magistrate may do is to make an order under Sec. 112, Cri. P.C, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the manner, character and class of sureties, if my, required. Thus, it is clear that the Magistrate had no authority under Sec. 167, Cri. P.C to order the detention of the 3 persons produced before him.

14. What the Magistrate did in this case was much worse. In the first Police Report of the Police dated 17-8-1961, the Magistrate was not gives any information which would permit him to initiate proceeding under Sec. 109, Cri. P.C All that the O/C Imphal Police Station stated was that the O/C Tamengiong and Nungba Police Stations have been asked to submit N.F.I.R under Sec. 109, Cri. P.C It was not the fault of the arrested persons that the O/C of Tamengiong and Nungba Police Stations could not submit a N.F.I.R under motion 109, Cri. P.C when they were produced before the Magistrate. The O/C Imphal Police Station had no right to request the Magistrate to remand the arrested persons to Jail custody pending the receipt of the N.F.I.R from the O/C Tamengiong and Nungba Police Stations.

15. I have already pointed out that even if the said N.F.I.R had been received in time, tits Magistrate cannot order the detention of the arrested persons under section 167, Cri. P.C, but that he can proceed only under Sec. 109, Cri. P.C and direct the arrested persons to give surety pending further enquiry into the matter under Sec. 117, Cri. P.C

16. The petitioner before me, pointed out to this Magistrate that he has not been informed in to the cause of his arrest and that a report should be called for from the Police and be should released. It is a pity that this Magistrate and the O/C Imphal Police Station were ignorant of the fundamental right of a citizen as provided in Article 22 of the Constitution. It provides that in person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds, for such arrest nor shall he be denied thus right to consult and to be defended by a legal practitioner of his choice.

17. When, therefore the petitioner informer this Magistrate that he has not been told of the reasons for his arrest, the Magistrate should noil Page: 454have simply ordered his continued detention, but the should have seen to it that the petitioner was informed of the grounds of his arrest, if the Magistrate had himself looked into the matter, he would have seen for himself that no grounds for the arrest had been disclosed to him and that he had no authority to order detention.

18. It is indeed surprising that this Magistrate went on ordering the continued detention of the petitioner and the other two arrested persons fortnight after fortnight, when no report had been received from the Police stating the grounds for the arrest. It would look as if this Magistrate did not know that citizens had certain fundamental rights guaranteeing ??? freedom, which, it is the duty of Courts to safeguard. He behaved as if he was merely an agent of the Executive to help the Police in detain-ling persons in custody, as long as the Police wanted. It is high time that this Magistrate learnt that as a Court he cannot behave in this fashion.

19. The explanation of this Magistrate is that he was only a link Magistrate to the S.D.M, Tamenglong as per order of the District Magistrate and that remand reports had to be obtained from Tamenglong and Nungba Police Stations which was not convenient and so remands had to be considered and granted in anticipation of such reports and so the arrested persons continued to be remanded till 11-10-1961. The explanation only betrays that for this Magistrate, the convenience of the Police is of greater concern than the freedom of the citizen or the provisions of the Criminal Procedure Code.

20. When dealing with section 167, Cri. P.C the Magistrate cannot look to the convenience of the Police to submit remand reports. The Court a dealing with the liberty of a citizen which is ??? under the constitution and it has to act according to the strict letter of the Law if the Police do not transmit, to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that investigation could not be completed within 24 hours and that there are grounds for believing that the accusation or information is well-founded, the Magistrate has no jurisdiction to direct the detention of the arrested person. It is a travesty of justice to order detention in anticipation of a remand report. It is seen in this case, that on Renny occasions no Police Officer was present and no remand report received and still the Magistrate went on ordering further remands of the arrested persons.

21. I am not able to understand what the District Magistrate meant by link Magistrates in his Order No. 5(J)-DM/61 dated Imphal, the 29th July, 1961 There is no provision for appointment of link Magistrates under the Criminal Procedure Code. It can at best only mean that one Magistrate has been given concurrent jurisdiction along with another Magistrate who may not be readily available. Even the so-called link Magistrate has to act under Section 162, Cri. P.C and abide by the strict provisions of the said section.

22. There is no doubt in my mind that the detention of the petitioner and the other two arrested persons in this case was totally against law and they have to be directed to be released from Jail.

23. I have already ordered their release pending final orders in this application and the said release order is hereby made absolute.

FF/J/D.H.Z

24. Order accordingly.