(Prayer: Petition (disposed of on 28-2-1949) under S. 491 Crl. P.C. 1898 praying that in the circumstances stated therein the High Court will be pleased to issue a writ in the nature of Habeas Corpus to produce the body of the petitioner herein before the High Court and direct that he be set at liberty.)

Satyanarayana Rao, J.

This is an application under S. 491 Criminal Procedure Code to issue an order in the nature of Habeas Corpus to produce the body of the petitioner who is now in the custody of the Commissioner of Police, Madras, and to set him at liberty.

The petitioner was arrested by the Inspector of Police, Intelligence Section, Madras City Police, on 22nd February 1949 and was produced by him before the Commissioner of Police on 23rd February 1949 and was remanded to custody for a period of ten days. The arrest as appears from the affidavit filed by the Inspector of Police was made under S. 151 Criminal Procedure Code. That section reads as follows:

A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

This section, it must be noted, occurs in the chapter, headed Preventive Action of the Police, and was designed to prevent the commission of offences by arresting the person beforehand.

The contention urged on behalf of the petitioner is that the arrest under S. 151 Criminal Procedure Code is illegal as the police officer had no information or facts before him to conclude that the petitioner entertained a design to commit a cognizable offence, and, further, that it was possible for the police officer to have prevented the commission of an offence by other methods. The affidavit of the Inspector of Police filed today clearly states that the Commissioner of Police received instructions from the Superintendent of Police, Special Branch, C.I.D., Madras, under instructions from the Deputy Commissioner of Police, Special Branch, Bombay, to arrest the petitioner under S. 151 Criminal Procedure Code. He adds that after satisfying himself that the petitioner was designing to commit a cognizable offence, he had arrested the petitioner on 22nd February 1949 and produced him before the Commissioner of Police on 23rd February 1949 who remanded him to custody. The section, it will be seen, authorizes a police officer to arrest if he had knowledge that the person sought to be arrested entertained a design to commit a cognizable offence, it must also further appear to the police officer that the commission of offence could not be otherwise prevented. Both the knowledge and the appearance are those of the police officer concerned and are not capable of an independent investigation. If the police officer had authority under S. 151 Criminal Procedure Code to arrest the petitioner, which undoubtedly he has, it is not open to this Court exercising its jurisdiction under S. 491 to go into the question whether, in fact, the police officer was justified in concluding that the person sought to he arrested was about to commit a cognizable offence and whet her the police officer was equally justified in concluding that there were no other means by which the perpetration of the offence could have been prevented. The discretion is vested solely in the police officer and that discretion cannot be questioned or canvassed in a proceeding under S. 491 Criminal Procedure Code. The object of the section is to prevent the commission of an offence which a person designs or intends to commit. The facts are not capable of investigation in order to find out whether, in fact, a cognizable offence was intended to be committed or not, as the offence would still be at the stage of an intention and has not passed into the region of facts. There is nothing therefore on the face of the record to show that the arrest was illegal or improper within the meaning of S. 491(1) clause (b) Criminal Procedure Code.

It was also contended on behalf of the petitioner that the proper procedure for the police officer was to have followed the procedure laid down in S. 54(ix) Criminal Procedure Code, and that if he had followed it, the requisition would have shown the person intended to be arrested as well as the offence or other causes for which the arrest was to be made. It is unnecessary for us to consider whether, on the facts as disclosed in the affidavit, it would not be a case also falling under that section. All that we are now concerned here is whether the custody of the petitioner is illegal or not. On the face of these proceedings, as stated already, there is nothing to indicate that the detention or custody of the petitioner is illegal or improper. For these reasons, we dismiss the petition.