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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & ANUJA PRABHUDESSAI, JJ.
Mr. Latesh Kumar Ganeshbhai Patel and Another - Applicants
Vs.
The State of Maharashtra - Respondent
CRIMINAL APPLICATION NO.768 OF 2016
Decided On : 24-03-2017
The sub - Section (2) of Section 41 unequivocally lays down that no person concerned in a non-cognizable offence shall be arrested except under a warrant or under an order of the Magistrate. The power under sub - Section (1) can be exercised by arresting a person without any order from the Magistrate and without a warrant. However, in case where non-cognizable offence is alleged, the officer can exercise the power under sub - Section (1) to arrest provided either there is a warrant issued or an order to that effect is passed by the Magistrate.
In this case, admittedly, there was neither a warrant issued nor an order passed by the Magistrate permitting arrest of the applicants. Court have, therefore, no hesitation in coming to the conclusion that the arrest of the applicants by exercising the power under clause (d) of sub - Section (1) of Section 41 of the Criminal Procedure Code was completely illegal. In this case, though a specific contention is raised in the grounds in this application that the arrest is illegal, there is no consequential prayer made in the application. As the illegal arrest infringes the fundamental rights guaranteed under Article 21 of the Constitution of India, it will be open for the applicants to file appropriate proceedings for seeking appropriate relief on the basis of violation of Article 21 of the Constitution of India.
Criminal Procedure Code, 1973 - Sections 154 and 155-Maharashtra Police Act, 1951, Section 124-FIR for possession of demonetised currency notes.-Registration of FIR under Section 154(1) of Cr PC based on permission granted under Section 155(2) of Cr PC is illegal.
Sub - Section (1) of Section 155 mandates that when an information is given to an officer-in-charge of a police station of the commission of a non-cognizable offence within the limits of such station, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in that behalf and refer the informant to the Magistrate. No police officer can investigate a non-cognizable offence without an order of a Magistrate having a power to try such case or commit the case for trial. Only after an order is passed under sub - Section (2) of Section 155 of Criminal Procedure Code by the Magistrate permitting the police to investigate, sub - Section (3) of Section 155 comes into picture which provides that any officer who is armed with a permission under sub - Section (2) of Section 155 can exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in case of a cognizable offence. Thus, by virtue of power under sub - Section (2) of Section 155, an officer armed with a permission can investigate into a non- cognizable case by exercising the same powers as an officer in charge of a police station may exercise in a cognizable case. In the present case, admittedly, on 4th March, 2016, a specific permission was granted under sub - Section (2) of Section 155 by the Magistrate.
Even it such permission is granted, the offence does not become a cognizable one for the purposes of sub - Section (1) of Section 154 of the Criminal Procedure Code. As stated earlier, only if the information relates to the commission of a cognizable offence that the same can be reduced into writing and the substance thereof shall be entered in a book in accordance with the provisions of sub - Section (1) of Section 154 of the Criminal Procedure Code. As narrated earlier, the information regarding a non-cognizable offence is to be entered in a book maintained in the prescribed form as provided in sub - Section (1) of Section 155. The only effect of the order under sub - Section (2) of Section 155 is that the officer in charge of the police station can exercise all the powers (except arrest without warrant) relating to investigation which could be exercised in relation to a cognizable offence while carrying out investigation into a non-cognizable offence. Therefore, the registration of the FIR under sub- section (1) of Section 154 on the basis of the permission granted under sub- section (2) of Section 155 is illegal. If such practice of registering FIR under sub- section (1) of Section 154 is being followed in any part of the State, the same will have to be forthwith discontinued.
Maharashtra Police Act, 1951 - Section 124-Motor Vehicles Act, 1988, Section 52-Criminal Procedure Code, 1973, Sections 154 and 482-Possession of demonetised currency notes.-In absence of any explanation for possession and carrying of demonetised huge currency notes in motor vehicle, FIR lodged against applicant under Section 124 of Act cannot be quashed.
Maharashtra Police Act, 1951 - Section 124-Motor Vehicles Act, 1988, Section 52-Criminal Procedure Code, 1973, Sections 154 and 482-Possession and carrying demonetised currency notes.-In absence of any satisfactory explanation given by driver of vehicle for possession of huge demonetised currency notes, FIR and charge-sheet cannot be quashed.
The registration of the First Information Report impugned in this application is illegal.
The charge-sheet to the extent of the applicability of Section 124 of the Maharashtra Police Act, 1951 is legal and valid. However, the defences of the applicants during the trial is kept open. However, that part of the charge-sheet by which the offence under Section 52 of the Motor Vehicles Act, 1988 is alleged is quashed.
The arrest of the applicants for purported exercise of powers under Clause (d) of sub - Section (1) of Section 41 of the Code of Criminal Procedure, 1973 is illegal. Court grant liberty to the applicants to take appropriate proceedings in that behalf in accordance with law.
Motor Vehicles Act, 1988 - Section 52-Criminal Procedure Code, 1973, Section 154- Alteration in Motor vehicle.-No owner of motor vehicle shall so alter vehicle that particulars contained in Registration Certificate are at variance with those originally specified by manufacturer.
The specifications of the vehicle involved in the offence provided by its manufacturer are not a part of the charge-sheet. Therefore, it is not possible to hold that the particulars of the vehicle mentioned in Registration Certificate are at variance with the specifications provided by the manufacturer. In fact, that is not the case made out in the charge-sheet. Hence, there is no material to show that the provision of sub - Section (1) of Section 52 of the said Act of 1988 has been infringed. Moreover, there is no penal provision contained in Section 52 in the sense that the section itself does not provide for any punishment. At highest, for violation of Section 52, a recourse can be taken to Section 171 of the said Act of 1988. However, on perusal of the entire charge-sheet and by taking the material therein as true, that no case of violation of sub - Section (1) of Section 52 of the said Act of 1988 is made out. Therefore, the charge-sheet filed for the offence punishable under Section 52 of the said Act of 1988 cannot be sustained.
Motor Vehicles Act, 1988 - Section 52-Criminal Procedure Code, 1973, Section 154- Alteration in Motor vehicle.-Non-infringement of provisions of Section 52(1) of M.V. Act renders charge-sheet filed for offence under Section 52 of Act unsustainable.
The specifications of the vehicle involved in the offence provided by its manufacturer are not a part of the charge-sheet. Therefore, it is not possible to hold that the particulars of the vehicle mentioned in Registration Certificate are at variance with the specifications provided by the manufacturer. In fact, that is not the case made out in the charge-sheet. Hence, there is no material to show that the provisions of sub - Section (1) of Section 52 of the said Act of 1988 has been infringed. Moreover, there is no penal provision contained in Section 52 in the sense that the section itself does not provide for any punishment. At highest, for violation of Section 52, a recourse can be taken to Section 171 of the said Act of 1988. However, on perusal of the entire charge-sheet and by taking the material therein as true, Court finds that no case of violation of sub - Section (1) Section 52 of the said Act of 1988 is made out. Therefore, the charge- sheet filed for the offence punishable under Section 52 of the said Act of 1988 cannot be sustained.
A.S. OKA, J.
1. The submissions of the parties were heard yesterday. The parties were put to notice that an endeavour shall be made to decide the Application finally at the stage of admission.
2. The prayer in this Application under Section 482 of the Code of Criminal Procedure, 1973 (for short “CrPC”) is for quashing the First Information Report (for short “FIR”) registered for the offence punishable under Section 124 of the Maharashtra Police Act, 1951 ( for short “the said Act of 1951”) and Section 52 of the Motor Vehicles Act, 1988 ( for short “the said Act of 1988”). A charge-sheet was filed on 13th January 2016 against the Applicants. A copy of the charge-sheet is placed on record. We have allowed the learned counsel appearing for the Applicants even to argue on merits of the charge-sheet as a remedy of applying for discharge is not available. We permit formal amendment to be carried out for incorporating a challenge to the charge-sheet which shall be done within a period of two weeks from the date on which this Judgment is uploaded.
3. The first informant is a Police Constable attached to Bhivandi Taluka Police Station. Along with other Police personnel, on 2nd March 2016, when he was on patrolling duty on Mumbai-Nashik Highway, he received an information that a Scorpio vehicle is likely to pass containing suspicious goods. Around 6.30 a.m. on 3rd March 2016, the first informant and other police personnel spotted the vehicle. According to the first informant, the Driver and one of the occupants of the said vehicle did not give satisfactory answer to the inquiry made with them. Therefore, a report was submitted to the Police Officer. After the Police Officer came, it was realized that there were drawers below the seat of the vehicle which could not be easily seen and the same were locked. The two Panchas were called and a person was also called for taking a video film. In their presence, the drawers were opened and it was found that there were bundles of currency notes of Rs.500/- and Rs.1,000/-. The total cash found was of Rs.2,84,50,000/-. It was suspected that the cash amount had been fraudulently obtained by the Applicants by illegal means. It was alleged that the Applicants could not give satisfactory explanation to the possession of the cash amount. The custody of the said amount was taken on the very day (3rd March 2016 at 22.32 hrs.) by the Police. The Applicants were arrested in purported exercise of power under Clause (d) of Sub-section (1) of Section 41 of the CrPC. On 4th March 2016, a remand report was submitted by the Police before the learned Judicial Magistrate, First Class at Bhivandi when the applicants were produced before him. Along with the remand report, a separate report was submitted recording that the Applicants have been arrested under Clause (d) of Sub-section (1) of Section 41 of the CrPC. A permission was sought from the learned Magistrate under Sub-section (2) of Section 155 of the CrPC which was duly granted. Probably, on the basis of the said permission that the Police ventured to register the impugned FIR under Section 154 of the CrPC, on the basis of which, an investigation was carried out and charge-sheet was filed for the offence punishable under Section 124 of the said Act of 1951 and Section 52 of the said Act of 1988.
4. The first submission of the learned counsel appearing for the Applicants was that merely because a permission was granted under Sub-section (2) of Section 155 of the CrPC, there was no power vesting in the Police to register FIR under Sub-section (1) of Section 154 of the CrPC. The submission is that the investigation carried out on the basis of the impugned FIR registered for non-cognizable offence is completely illegal. It is further submitted that Section 52 of the said Act of 1988 does not incorporate any penal provision. In any case, there is no violation of Section 52 of the said Act of 1988. Further submission is that even Section 124 of the said Act of
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