G. Yethirajulu, J.
1. This is a writ of Habeas Corpus filed by the alleged detenu by name Ajai Kumar Roy seeking to declare that his detention by the 3rd respondent with effect from 1400 hours of 16-11-2002 without communicating the grounds of arrest as unjust, unlawful and ultra vires and consequently to direct the respondents to cause his production before the Court and to set him at liberty.
2. The father of the detenu filed an affidavit in support of the writ petition contending that the detenu while working as a Non-Commissioned Officer of the Indian Army serving under the 3rd respondent was taken into illegal military custody without there being any legitimate ground for such arrest and without communicating to him or his wife the grounds of such arrest on 16-11-2002 at about 1400 hours while he was about to leave for lunch after duty. Neither he nor his wife were informed of the grounds of arrest at the time of arrest or at any time subsequently till the date of filing the writ petition. After hearing the news of arrest of the detenu, the deponent who is at Calcutta reached Secunderabad by Air at about 10 a.m. on 17-11-2002 and approached the respondents 2 and 3 for permission to meet the detenu, but he was not allowed to see him. Under Section 101(1) of the Army Act, 1950 ('the Act' for brevity) it is the duty of the officer taking a person into military custody to inform the detenu of the grounds of arrest in writing to enable him to prepare the defence or to seek legal assistance in the matter which cannot be denied to the detenu on the ground that he was arrested under the provisions of the Act. Hence the petition for the reliefs mentioned above.
3. The 3rd respondent filed a counter-affidavit contending that the petitioner was in the rank of 'Naik' but his rank was reduced to 'Sepoy' in the Summary Court-Martial on 29-4-2002 at COD, Agra in the form of punishment. There was a complaint against him for demanding Rs. 15,000/- from No. 6945008A Soldier Dharmender Kumar Tiwari of No. 1 Training Battalion AOC Centre under basic military training as gratification to help him during his enrolment and threatening him with dire consequences of failing him in the tests if he fails to pay the money. He was taken into military custody in accordance with the provisions of Section 101(1) of the Act. The petitioner and his wife were verbally informed the accusation made against him before taking to military custody and a Court of Enquiry has been ordered to investigate the charges against him and the petitioner is fully participating in the Court of Inquiry under Rule 180 of Army Rules, The petitioner was taken into military custody to ensure fair and speedy investigation. It was done to prevent him from tampering with the evidence by intimidating the witnesses who were mostly young recruits. It was also done to ensure his availability for speedy completion of investigation because he could have deserted from service and rejoined any time within a period of three years and get eligibility for military service. He is given all the facilities including medical facilities and attendant to receive full military honours. The provisions of the Code of Criminal Procedure have no application in the instant case and the petitioner was rightly placed under close arrest; in accordance with Section 101(1) of the Act. The proceedings and the findings of the Court of Inquiry has been completed and is being processed for further action in accordance with the provisions of the Act. The petitioner has filed this writ petition without availing the alternative remedy under Section 26 of the Act and Rule 33(b) of Army Rules. The petition is therefore liable to be dismissed.
4. After admitting the writ petition a notice was issued to the respondents and they made their appearance through their counsel and sought time for filing counter-affidavit. When the counsel for the petitioner requested to issue interim direction to release the petitioner, the arguments of both parties were heard. Since we were of the prima facie view that the arrest of the detenu is not warranted and as he remained in custody since 16-11-2002 through order dated 21-11-2002 we directed the respondents to release the detenu forthwith subject to the condition that he makes himself available as and when required by the concerned authorities to make progress in the investigation.
5. Subsequently it came to light that in pursuance of the direction of this Court, the detenu was released from the custody and the matter was finally heard.
6. The points for consideration are :
1) Whether a detenu like the petitioner is entitled to be informed the grounds of arrest in writing?
2) Whether the close arrest of the petitioner is in accordance with the provisions of the Army Act, 1950?
POINT NO. 1 :
7. The petitioner is contending that he was illegally detained without informing the grounds of arrest which is against the provisions of the Act. The respondents are contending that they effected the arrest of the petitioner in pursuance of the powers vested in them under Section 101(1) of the Act and as he was verbally informed about the grounds of arrest, the question of any illegality, in keeping the petitioner under arrest does not arise.
8. In order to set at rest the issue in controversy, we would like to refer to Section 101(1) of the Army Act, 1950 which reads as follows :
101. Custody of offenders :--
1) Any person subject to this Act who is . charged with an offence may be taken in to military custody;
2) Any such person may be ordered into military custody by any superior officer;
3) Any officer may order into military custody any officer, though he may be of a higher rank, engaged in a quarrel, affray or disorder.
9. Rule 40 of the Border Security Force Rules, 1969 ('BSF Rules' for brevity) provides the rights of a person who is under arrest. The said rule reads as under :
40. Rights of a person under arrest-
1) (a) Any person placed under arrest shall, at the time of being placed under arrest, be given in writing by the officer effecting the arrest the particulars of the charges against him.
(b) The said particulars shall be rendered in simple language and also explained to the accused.
(c) Notwithstanding anything contained in Clause (a), where during the investigation other offences committed by the accused are discovered, it shall be lawful to charge such person with those offences.
2 (a) The orderly officer or the orderly subordinate officer shall every day make a visit to the person under arrest and take the orders of the Commandant on any request or representation made by the person under arrest.
(b) The request or representation made by the person under arrest shall be entered in the form set out in Appendix III.
10. This rule makes the position very clear that at the time of arrest of any person he shall be given in writing the particulars of the charge against him.
11. Rule 36 of the BSF Rules refers to the circumstances under which the arrest of a person can be imposed. It reads as under :
36. Arrest when to be imposed--
1) Any person charged with,--
i) an offence under Section 14, or Clause (a) or Clause (b) of Section 16, or Section 17 or Section 20 or Sub-section (1) of Section 21;
ii) a civil offence punishable with death or imprisonment for life;
iii) any other offence under the Act-
a) if the interest of discipline so require, or
b) if the person concerned deliberately undermines discipline, or
c) if the person concerned is of violent disposition, or
d) if the person concerned is likely to absent himself with a view to avoid trial, or
e) if the person concerned is likely to interfere with witnesses or tamper with evidence,
shall be placed under arrest.
2) Where any person arrested shows symptoms of sickness, medical assistance shall be provided for such person.
12. Section 50 of the Army Act, 1950 reads as follows :
50. Irregularity in connection with arrest or confinement.-- Any person subject to this Act who commits any of the following offences, that is to say,--
a) unnecessarily detain a person in arrest or confinement without bringing him to trial, or falls to bring his case before the proper authority for investigation; or
b) having committed a person to military custody fails without reasonable cause to deliver at the time of such committal, or as soon as practicable, and in any case within forty-eight hours thereafter, to the officer or other person into whose custody the person arrested is committed, an account, in writing signed by himself of the offence with which the person so committed is charged;
shall on conviction by Court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in the Act mentioned.
13. Section 28 of the Border Security Force Act, 1968 is also a verbatim reproduction of Section 50 of the Army Act. Section 50 of the Army Act provides for punishment to the Officer who effects the arrest of his subordinate and fails to give the account of the accusation which laid the arrest of that person in writing, signed by himself, as soon as practicable, and in any case within 48 hours after the arrest. This penal provision is a clear indication that the Officers who are effecting the arrest of the subordinates shall be more careful in making such arrest and shall, take all precautions to comply with the provisions of the Act, since the arrest of the person working under him amounts to curtailing the right to movement guaranteed under Article 21 of the Constitution of India, subject to reasonable restrictions. When the restriction is an exception, the Officers who are effecting the arrest have to furnish necessary material to the person whom they are arresting by giving the causes of arrest and the offence for which he is being charge-sheeted,
14. Rule 40 of the BSF Rules makes it mandatory for the Officers effecting the arrest, to furnish the particulars of the charges against, the person arrested in writing at the time of arrest itself. The respondents are contending that they informed the detenu orally about the cause of arrest and that they have also orally informed the wife of the detenu about, the cause of arrest, Whenever the Officers take the plea that they orally informed the arrested person about the cause of arrest and when the arrested person is denying such oral information, it leads to a doubt whether the concerned authority arrested the person without informing him about the offence for which he was arrested and it creates a doubt whether the rules are scrupulously followed at the time of arrest and afterwards. Unless the concerned Officers furnish the information in writing regarding the cause of arrest to the person arrested, it becomes very difficult for him to extend his stand and to prepare himself for defence during the enquiry OF trial. The oral information is likely to change from person to person and distorted version is likely to be conveyed to the arrested person by the person who is effecting the arrest which may be different from the cause mentioned by the Officer at whose instance the arrest took place. If the concerned Officers plead oral information, it is likely to be changed at any time to suit the charges made against the arrested person and, in such a case, the arrested person may be in a helpless condition either to approach a Court of Law for protection of his fundamental right or to any other forum in advancing his defence.
15. Army Code No. 12730 (Revised 2000) enumerates the rights of a soldier arrested for or charged with an offence under the Army Act. In para 3 of the said Code it was mentioned that one need not necessarily be arrested at all during the case. Under para 4 it is mentioned that once a person is arrested, his arrest must be reported to the Commanding Officer as soon as practicable. The 'arrest report' must indicate whether the person arrested was still in the military custody, and, if so, why. Unless such person has been charged with an offence, he may be kept in military custody until the report is made, after the arresting officer reasonably believe that it is necessary to keep him in custody under certain circumstances, as mentioned in the Code, Para 5 indicates the right of the person arrested. When once such person is arrested, he must be given a form, 'Custody Information for an Accused not yet Charged' which may tell him for what offence he was arrested, the date, time and location of his arrest, why he is to be kept in custody, how long his retention in military custody is authorized, his right to make representations and his right to an arresting officer and such 'custody information report' has to be signed by the person in the custody to confirm that he received the same,
16. Army Code No. 64184 deals with the Commander's guide to custody. In para 14 of the said Code it was mentioned that arrest involves depriving an individual of his liberty and must only be used where absolutely necessary. When an accused has been arrested and placed in military custody, he will have the right to ask to be released by making written representation to the officer who is authorizing his retention in military custody, A close examination of the need for arrest and custody is essential. Simply because an offence has been committed, or is reasonably suspected of having been committed, or alleged, does not mean that the accused should be arrested and placed in custody as a matter of routine. Any sensible and practical alternative should be used in preference to custody if it meets the needs of the situation and military discipline.
17. In para 21 of the Code it was mentioned that the arresting officer should provide information to the accused in military custody if the person who made the arrest makes a decision to retain a soldier in military custody pending the report of his report to the Commanding Officer, information relating to the circumstances of his arrest and the grounds of retention in arrest must be given to the accused. This enables him to know his position and to make meaningful use of his right to make representations. The information provided must include : a) a copy of 'the rights of a soldier arrested for or charged with an, offence under the Army Act, 1955'; b) a completed copy of 'custody information for an accused not yet charged'.
18. Army Code No. 64181 relates to Commander's Guide to Discipline. Para 31 of the said Code indicates that the Commanding Officer has a personal responsibility to ensure that an individual should only be placed in custody, and remain in custody, for as long as is absolutely necessary. Individuals must never be placed in custody, however temporary, for trivial or exemplary reasons. Failure to observe scrupulously the regulations is a source of justifiable legal challenge': a Judicial Officer may call upon the Commanding Officer personally to account forhis decision.
19. The Army Act is supplemented by the Rules, Regulations and the Army Code to enlighten the soldiers about their rights' after arrest and their right to make representations for release etc, All the above provisions of the statutes, the regulations and the Army Code indicate that there was every endeavour on the part of the framers to protect the liberty of an individual working in Armed Forces, unless is absolutely necessary to deny the same.
20. In the light of the provisions of the Acts, referred supra, and in the light pf the facts and circumstances of this petition, we are inclined to make it a Rule that whenever a person working in the Armed Forces is proposed to be arrested, such person shall be provided the causes of arrest in writing for effecting his arrest. If the concerned authorities fail to inform the causes in writing, it makes the arrest illegal. This point is accordingly answered in favour of the writ petitioner and against the respondents.
POINT NO. 2 :
21. Rule 31 of the BSF Rules speaks about the forms of arrest. It reads as under :
31. Forms of arrest.-- (1) Arrest may be either open arrest or close arrest.
(2) An arrest, unless otherwise specified shall mean an open arrest.
(3) An order imposing arrest may be communicated to the person to be arrested either orally or in writing.
22. Section 15 of the Central Reserve Police Force Act, 1949 ('CRPF Act' for brevity) defines 'arrest' and it reads as follows :
15. Arrest.-- (1) Any member of the Force who commits any offence specified in Section 9 or Section 10 may be placed on open or close arrest by any officer within the Force.
(2) Where any subordinate officer orders an arrest under Sub-section (1), he shall forthwith or at the earliest opportunity report the arrest to his company or detachment Commander who shall after investigating the case order the release or the continued arrest of the member of the Force arrested.
23. Rule 33 of the Border Security Force Rules, 1969 ('BSF Rules' for brevity) refers as to how 'close arrest' and 'open arrest' be imposed and the said Rule reads as follows :
33. Arrest how imposed :
A) Close arrest :
1) (a) Close arrest in the case of enrolled persons shall be imposed by informing the person to be arrested and ordering him to be marched to the place of confinement under an escort of person of similar or superior rank.
(b) Where no such escort is available the person arrested shall be ordered to report himself immediately to the quarter guard or other place of confinement.
2) (a) Close arrest in the case of officers, subordinate officers and under officers, shall be imposed by placing such officer, subordinate officer or under officer under the custody of another person of similar or superior rank and wherever considered necessary such officer, subordinate officer, or under officer may be confined under charge of a guard.
(b) The person under arrest shall not leave his quarter or tent without permission of a superior officer designated by the Commandant in this behalf.
B) Open Arrest :
3) (a) Open arrest shall be imposed by informing the person to be arrested (whether he is an officer, subordinate officer, under officer or an enrolled person) that he is under open arrest and that he shall confine himself within such limits as may be specified in this behalf by the concerned superior officer effecting such arrest.
(b) The Commandant may, from time to time, vary the limits referred to in Clause (a) above.
24. Rule 64(e) of the Army Act, 1950 reads as follows :
64. Miscellaneous offensive.-- Any person subject to this Act who commits any of the following offences, that is to say,--
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(e) directly or indirectly accepts or obtains, or agrees to accept or attempts to obtain for himself or for any other person any gratification as a motive or reward for pro curing the enrolment of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service; or
xxx
shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
25. According to the provisions of this section, attempt to obtain gratification from any person to provide any advantage to such person is an offence and is liable to suffer imprisonment for a term which may extent to seven years. The detenu alleged to have committed the said offence by demanding a sum of Rs. 15,000/- from a soldier Dharmender Kumar Tiwari to help him during his enrolment and threatened with dire consequences of failing in the test if the said Tiwari fails to pay the money.
26. As per Rule 31(2) of BSF Rules an arrest unless otherwise specified mean 'open arrest'. In the case on hand, the detenu was kept in a quarter guard which amounts to 'close arrest'. The 3rd respondent except mentioning that the detenu was rightly placed under 'close arrest' in accordance with the provisions of Section 101 of the Army Act, did not mention as to what were the circumstances under which the detenu was kept in 'close arrest'.
27. It is no doubt true that discipline has to be maintained in the Army and the concerned Officer shall be vested with certain powers to deal with the soldiers and other subordinate Officers to follow their instructions and to act according to their commands. But, the Officers on the pretext of discipline are not supposed to curtail the freedom of the personnel working under them or infringe the rights guaranteed under Article 21 of the Constitution of India and to the extent permissible under the provisions of the relevant statutes. There is no meaning in repeatedly saying that the Constitution protects the rights of the individuals as enshrined under Part III of the Constitution of India unless it is put to practice. The rights of the personnel also cannot be taken away or abridged completely except according to the procedure established by law as laid down by the Supreme Court in Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : (1978 Cri LJ 1741). The concerned authorities are entitled to impose reasonable restrictions on such rights as provided under the relevant statues or statutory rules to maintain law and order in all disciplines. But, that does not give unfettered powers to those authorities to deal with the lives and liberties of the people as they like. So long as the authorities exercise their powers within the limits prescribed under the relevant statutes, the Courts do not interfere, but, when once they cross a line known as 'Lakshmana Rekha' the Courts being the custodians of the people are bound to react and correct the errors committed by the concerned authorities either to prevent the abuse of the process of law or failure to follow the procedure established by law. Though, the respondents mentioned in the counter-affidavit the reasons for ordering of 'close arrest' of the detenu, they did not place any record regarding assigning of reasons for such arrest. The close arrest is not in accordance with the provisions of the Act. In the light of the above circumstances, we hold that ordering of 'close arrest' with out assigning sufficient reasons in writing is not legal and in such a case the arrest becomes illegal. Though the respondents mentioned in the counter-affidavit the reasons for close arrest, they did not place any record regarding assigning of reasons for close arrest of the detenu. The 'close arrest' is not in accordance with the provisions of the Act. This point is accordingly answered in favour of the petitioner and against the respondents.
28. Imposing punishment on a person who is found guilty of the charges of an offence is different from dealing with a person against whom there is an accusation that he has committed a particular offence provided under the Act. In the light of the above discussion, we hold that the 'close arrest' of the detenu without assigning any reasons is illegal and as the detenu was already released during the pendency of this petition, we hope that the authorities would not resort to re-arrest him without informing him the cause of such arrest, either 'close arrest' or 'open arrest', in writing. The writ petition is accordingly disposed of. No costs.