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2019 Supreme(Bom) 1107
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S.Shinde J.
Ankita Harinath Mishra - Applicant
Versus
The State of Maharashtra - Respondent
Criminal Application No. 688 OF 2019
Decided On : 16-08-2019
For the Applicant : Mr.Rizwan Merchant i/b. Rizwan Merchant
For the Respondent: Mr.A.R.Patil, APP
Headnote:
Indian Penal Code,1860 – Section 302 and 201 – Criminal Procedure Code,1973 – Section 46(4),46 and 60A – Offence of murder – Missing - It is the case of applicant that, pursuant to a missing complaint, a F.I.R. was registered by one who is original complainant, under sections 302 and 201 of the Indian Penal Code for the murder of her husband - Information was received by respondents office - FIR was registered against unknown persons - Thereafter, after alleged investigation, respondents officers came to the conclusion that present applicant has committed murder of the deceased and was shown as an accused merely on the basis of suspicion, sans any legal and/or material evidence as against her - It is further case of the applicant that, immediately respondents officers preferred a groundless application itself before learned Magistrate seeking permission to arrest present applicant after sunset without citing any exceptional circumstances - Whether in the present case, mandate of sub-section (4) of section 46 and also section 60A of the Cr.P.C. is followed or not – Held, therefore, in the present case, keeping in view the contents of the application, which was filed by respondent -State learned Magistrate has passed the order - Said application clearly discloses that applicant is involved in serious offence - Procedure as envisaged under sub-section (4) of section 46 of the Cr.P.C. has been scrupulously followed in the present case and after obtaining permission from learned Magistrate, at hands of lady police officer, applicant was arrested - Learned Counsel appearing for applicant has placed heavy reliance upon ratio laid down in the cases of Jaywant Balkrishna Sail & Ors. (supra), Mrs.Bharati S. Khandhar (supra) and Kavita Manikikar of Mumbai (supra) - However, facts of the present case are clearly distinguishable vis-a-vis the facts in three cases - In the said cases, women accused were arrested without prior permission of learned Magistrate since the lady police officer did not make report to Magistrate so as to obtain prior permission for effecting the arrest - Thereafter, they were produced before the learned Magistrate on the second day of arrest - Thus, there was clear violation of the aforesaid provisions in all those aforesaid cases - In the present case, as already observed, respondent has scrupulously followed the mandate of sub-section (4) of section 46 and also section 60A of Cr.P.C. before arresting the applicant - In that view of the matter, this Court is of opinion that there is no substance in the application - Hence, criminal application stands rejected.
JUDGMENT :
1. Rule. Rule made returnable with the consent of the parties and heard finally.
2. This application takes an exception to the order dated 17.03.2019 passed by the learned Judicial Magistrate, 4th Court, Bhiwandi, Thane thereby granting permission to arrest the present applicant.
3. It is the case of the applicant that, pursuant to a missing complaint, a F.I.R. bearing C.R. No. 119 of 2019 was registered by one Mrs. Poonam Nityanand Pandey, who is original complainant, under sections 302 and 201 of the Indian Penal Code (for short "I.P.C.") for the murder of her husband Mr.Nityanand Sheetalprasad Pandey on 17.03.2019. The information was received by the respondent's office at 20:05 on 17.03.2019. The FIR was registered at 20:33 p.m. on the night of 17.03.2019 against unknown persons. Thereafter, after alleged investigation, the respondent's officers came to the conclusion that the present applicant has committed the murder of the deceased and was shown as an accused merely on the basis of suspicion, sans any legal and/or material evidence as against her.
4. It is further case of the applicant that, immediately thereafter, the respondent's officers preferred a groundless application on 17.03.2019 itself before the learned Magistrate seeking permission to arrest the present applicant after sunset without citing any exceptional circumstances. The learned Magistrate granted the said permission to arrest the applicant vide order dated 17.03.2019, which reads as under :
"Read application. I.O. submitted that offence is serious in nature. Arrest is necessary after sunset. Considering reason, permission is granted to arrest".
5. Being aggrieved by the said order, the present applicant has filed the present criminal application.
6. The learned Counsel appearing for the applicant submitted that a perusal of the said impugned order will reveal that no exceptional circumstances were relied upon by the learned Magistrate to carve out an exception granting permission to arrest the applicant after sunset. Therefore, the impugned order on the basis of which the applicant was arrested is illegal, erroneous and bad in law, and deserves to be set aside. He further submitted that immediately thereafter, acting upon the impugned order, the respondent's officers apprehended and arrested the applicant. The applicant underwent police custody for a period of 14 days after which she was remanded to judicial custody. The applicant is presently lodged and detained in Kalyan Jail.
7. He further submitted that the impugned order was passed in contravention to sub-section (4) of section 46 of the Code of Criminal Procedure (for short "the Cr.P.C."). The arrest of the applicant is itself void, illegal and bad in law. Therefore, the applicant is challenging the impugned order, upon passing of which, she was arrested on the following grounds, which are urged without prejudice to each other.
8. Firstly, the order passed by the learned Magistrate is demonstrably perverse, palpably erroneous and contrary to the law and facts on record and, therefore, the same deserved to be quashed and set aside. Secondly, the learned Magistrate has passed the impugned order mechanically without an application of his mind. The said order is illegal and improper which deserves to be set aside, as the said order is malafide and erroneous. Thirdly, section 46 of the Cr.P.C. which prescribes the procedure for how an arrest has to be made in sub section 4 categorically reads as follows:
"Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officers shall, by making a written report, obtain the prior permission of the Judicial Magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made".
This salutary provision was added vide Amendment Act 2005. It is further submitted that the impugned order is in gross violation of subsection (4
