Laxminarayan Vishwanath Arya vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 974

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J., SMT. RANJANA DESAI & D.B. BHOSALE, JJ.
Laxminarayan Vishwanath Arya —Petitioner
Versus
The State of Maharashtra — Respondents
CRIMINAL WRIT PETITION NO. 702 OF 2007
Decided on : July 19, 2007
Advocates appeared :
Mr. K.H. Giri, Mr. Hilesh Mishra, Smt Aruradha Shinde and Mr. O.D Goswami for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor, for the State.
Mr. R.S. Mishra for respondent Nos. 2 to 7.

Headnote:Criminal Procedure Code, 1973 - Sections 41 and 156(3) - Investigation - FIR lodged against accused - Arrest of accused - Police officer not required to obtain leave of Court for arresting accused - Power of police to arrest accused - To be exercised with great caution and sensitivity in accordance with law. - The powers vested in the Court under Section 156(3) are pre-cognizance in contradistinction to powers vested in the Court when the matter comes up before the Court post-cognizance. Even this understanding can alone help in discernibly viewing the distinct field of jurisdiction between investigation by police and the functions of the Court. Passing of such an order as in the present case would not amount to intrusion into the field of investigation as just being a safeguard in the backdrop of the things that the proceedings before the Court under Section 156(3) of the Code were vitiated for default or inaction of the police itself but passing of such order would not be appropriate as an alternative efficacious remedy is available to the suspect accused by way of anticipatory bail. The Investigating Officer would have the power as contemplated under Section 41 of the Code but a word of caution need to be mentioned that in the cases where investigation is being conducted in furtherance to directives of the Court under Section 156(3) of the Code requires the officer concerned to exercise the discretion vested in him with greater sensitivity and in accordance with the settled canon of criminal jurisprudence while keeping the facts and circumstances of each case in mind. Though the case of Jehan Singh, does not enunciate the correct principle of law as noticed by Court, even then the Court had stated that wherever the arresting officer finds a possibility of the accused absconding or it was dangerous to arrest him without leave of the Court. The rudiments of criminal jurisprudence to avoid serious ramification in view of the scheme formulated under the provisions of the Code persuade court to take the above view.
       In view of above detailed discussion and settled principles of law, Court would proceed to answer the three questions referred to the larger Bench as under :
       (i) Whether the police have to approach the Magistrate and take orders from him before arresting the accused against whom FIR is registered pursuant to the orders issued by the Magistrate under Section 156(3) of the Criminal Procedure Code, 1973?
       Ans. It is neither obligatory nor mandatory for a Police Officer to obtain the leave of the Court before arresting an accused against whom FIR is registered i n pursuance of the order passed by the Magistrate under Section 156(3) of the Criminal Procedure Code, 1973. Certainly, Court would hasten to add that exercise of discretion by the arresting officer should be exercised with greater sensitivity and in accordance with the settled canon of criminal jurisprudence, while keeping the facts and circumstances of each case in mind. It needs to be remembered by the Investigating agencies that order under Section 156(3) maybe passed by the Court as a result of failure to perform its duty on the part of the investigating agencies.
       (ii) Whether the police can exercise the powers of arrest under Section 41 of the Criminal Procedure Code, 1973, without intervention of the Court?
       Ans. A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. In fact, answer to this question is squarely provided in the judgment of the Supreme Court in M.C. Abraham.
       (iii) Whether the Judgment of the Court in Jagannath Singh v. Dr. Shri Ajay Upadyay and another, 2006 Cri LJ 4274 is required to be reconsidered in view of the judgment of the Supreme Court in M.C. Abraham and others v. State of Maharashtra and others, 2003 Bom CR (Cri) 650 (SC)?
       Ans. The judgment of the Division Bench of the Court in the case of Jagannath Singh, with respect, even with the stated exceptions, is not a correct exposition of law.

JUDGMENT (Per Swatanter Kumar, C.J.):

The legislative scheme behind the Code of Criminal Procedure, 1973 discerningly deciphers distinction of jurisdiction and field covered by the police or investigating agency on the one hand and the powers of the court while conducting inquiry or trial. Exercise of authority or jurisdiction by these two distinct components involved in the administration of criminal justice as provided under Chapter XII (Sections 154 to 176) and Chapter XIII to XV (sections 177 to 203) is indicative. This legislative object of distribution of power without transgression on the limitation of the other has received judicial approval. With the development of law under criminal jurisprudence there is clear judicial dichotomy of investigative and judicial power. They operate in different fields without conflict and scope for overlapping, unless the provisions of the Code or judicial dictum have provided to the contrary. Despite passage of time such approach has prevailed with tenacity. Such tenets of criminal law have remained untraumatised and the objectivity of legislative or judge made law has developed towards the common goal without conflict. Pervasive approach of law relating to interpretation of procedural law can be termed as a reasonable percept of resolving impediment in proper administration of criminal justice. Est boni judicis ampliare jusiciam non jurisdictionem can fairly be applied to such a situation and the judge may amplify or extend his jurisdiction but not his judicial authority, particularly when it is opposed to specific provisions of the Code. Where law casts a duty upon police to take action to prevent an offence, there it also makes it obligatory upon him that moment information relating to the commission of cognizable offence is given to the incharge police station, he must reduce it to writing and proceed to investigate the same in accordance with law. The duties and powers of the investigating agency are spelt out with inbuilt check and balance under the provisions of sections 154 to 176 of Chapter XII. In contra distinct to these powers, the powers of the courts in relation to the inquiry and trials are stated in the subsequent sections in Chapter XIII.

2. Criminal liability postulates pre-existent of 'actus reus'. The law however, is not concerned with punishing the people for thinking evil or having evil intention. It must be followed by conduct or act with some physical manifestation of the intention conducive to the process of investigation which would relate to the clarity of analysis of the ingredients of the kind created by the statute. Firm duty to act may result differently in different situations. Where a duty to act and responsibility imposed by the statute arises, its consequence must flow in law. Failure to act in furtherance to the statutory reforms gives rise to accountable wrong and would put in motion the mechanism stated in the statute, may be in the realm of courts or domain of higher investigating authorities. Rule of law requires the authorities to act in conformity with the statutory provisions and not expose the complainant or public at large to compulsive litigation.

3. Section 154 of the Code requires a police officer in charge of police station to reduce in writing every information relating to the communication of cognisable offence. In his default to act, the aggrieved party normally should approach the Superintendent of Police of the concerned area, who, if satisfied that the complaint discloses commission of cognisable offence may direct the police officer, subordinate to him, to investigate the same in accordance with law. This is the administrative remedy to an aggrieved complainant, while he could take recourse to the procedure of requesting the Magistrate empowered to take cognisance under section 190 of the said offence and pray that a direction be issued for investigation of the complaint as contemplated under section 156(3) of the Act.

4. One Laxm

Click Here to Read the rest of this document