ORDER
1. In this petition under Art. 226 of the Constitution, the petitioner Kultej Singh, brother of Sri Herdeep Singh, has sought for issue of a writ in the nature of Habeas Corpus directing the respondents to produce Sri Hardeep Singh and to pass such consequential orders as are necessary.
2. On 27-11-1990, Sri Doddamani, learned Govt. Pleader was directed to take notice for the respondents.
3. The learned Govt. Pleader has filed the affidavits of Sri N. B. Patil, Circle Inspector of Police, Shiggaon Circle, Shiggaon, and Sri P.S. Gachinagatti, Sub-Inspector of Savanur Police Station, Savanur, who are respondents 1 and 2 respectively. In both the affidavits, the averments made in the petition as to the arrest have been denied.
4. Sri Kashinath Rao, learned counsel for the petitioner, raised several contentions. However, he gave up all his contentions except the one that even though Sri Hardeep Singh was arrested in the morning of 27-9-1990, he was produced before the Court only on 29-9-1990, long after the expiry of 24 hours.
5. In support of his contention that Sri Hardeep Singh was arrested in the morning of 27-9-1990, the petitioner has produced a xerox copy of the F.I.R. filed in the Court of the J.M.F.C. Savanur as one of the annexures to the petition. In the F.I.R. it is specifically stated thus :
6. In the counter-affidavit filed by respondents 1 and 2, it is averred that Sri Hardeep Singh and two others were arrested only on 28-9-1990 and they were produced before the J.M.F.C. Savanur on 29-9-1990 without any loss of time.
7. It is not possible to accept the case of respondents 1 and 2. It is specifically stated in the F.I.R. and it is also not disputed before us that Hardeep Singh, Balbir and Kulwanth Singh were kept in the police station at Savanur from the morning of 27-9-1990 when the truck bearing No. DIG 0541 in which these persons were found, was intercepted and seized. Thus the movements of Hardeep Singh were confined to Savanur Police Station. However, in respect of the other two persons viz., Sri Balbir and Kulwanth Singh, it is stated that they were injured and therefore, they were sent to Hospital for treatment. In this petition we are not concerned with Balbir and Kulwant Singh. As far as Hardeep Singh is concerned, it is not disputed that he was kept in Savanur Police Station from the morning of 27-9-1990 until he was produced before the Magistrate at Savanur on 29-9-1990 at 10-30 a.m.
8. Hardeep Singh, Balbir and Kulwanth Singh are said to have been involved in Cr. No. 108/1990 on the file of Savanur Police Station for the offences punishable under Ss. 379, 411, 279, 338 read with Ss. 86 and 87, I.P.C. and 104-D of the Karnataka Forest Act. Section 379, I.P.C. is a cognizable offence for which the Police Officer can arrest without a warrant. Section 46 of the Cr.P.C. 1973 provides as to how arrest can be made. It reads :
46. Arrest how made. - (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.'
Thus from a reading of sub-section (1) of Section 46 of the Cr.P.C. it is clear that a police officer while making arrest even if he actually touches the body of the person to be arrested, he can be said to have arrested the person. If a person is confined or kept in the police station or his movements are restricted within the precincts of a police station, it would undoubtedly be a case of arrest. In the instant case, the FIR specifically states that Hardeep Singh was kept in the police station from the morning of 27-9-1990. Section 57 of the Cr.P.C. provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. Thus respondents 1 and 2 were required to produce Haerdeep Singh within 24 hours from the time he was kept in the police station at Savanur.
9. The contention of Sri Doddamani, learned Government Pleader appearing for respondents, is that mere keeping Hardeep Singh in the police Station did not amount to 'arrest'. For the purpose of making the arrest, a panchanama was required to be drawn and all other formalities were required to be completed. It was done only on 28-9-1990 and he was arrested on that date. It is not possible to accept this contention in the light of the provisions contained in Section 46 read with Section 57 of the Cr.P.C.
10. It is submitted by the learned Govt. Pleader that in the event the fact of arrest shown as 28-9-1990 is not accepted, the explanation offered for the delay in the counter-affidavit and the unconditional apology tendered by respondents 1 and 2 in the memo filed by him today may be accepted.
11. The contents of the F.I.R. reveal that respondents 1 and 2 were immediately required to go to Dharwad in connection with communal rioting and they could return to Savanur only on 28-9-1990. There are no records produced nor any circumstances are brought on record to doubt the bona fides of these officers. Thus in the facts and circumstances of the case, it cannot be said that respondents 1 and 2 purposely and with ulterior motive had kept Hardeep Singh in the police station without producing him before the Court. The delay appears to have taken place on account of the fact that respondents 1 and 2 were required to be present at Dharwad in connection with communal rioting. Under these circumstances and in the light of the memo dated 18-12-1990 filed by respondents 1 and 2 tendering unconditional apology in not producing Hardeep Singh in time before the J.M.F.C. Savanur, we are of the view that this is not a case in which any damages should be awarded as claimed by the petitioner inasmuch as the conduct of respondents 1 and 2 cannot be considered to be lacking in bona fides. On the contrary, we must appreciate the manner in which they have chased the lorry and seized 4427 Kgs. of sandlewood worth Rs. 5,53,250/- in which Hardeep Singh and two others were found travelling. We have also been informed that Hardeep Singh was released on bail by the J.M.F.C. Savanur on 30-11-1990.
12. The Memo dated 18-12-1990 filed by respondents 1 and 2 is placed on record.
13. Fro the reasons stated above, there is no reason to continue this petition any further. It is accordingly closed.
14. Sri Doddamani, learned Govt. Pleader is permitted to file his memo of appearance on behalf respondents in six weeks.
15. Order accordingly.