Vasant @ Mankya Bangade Vs. State

Vasant @ Mankya Bangade vs State

Type Court Judgment Court Mumbai Decided Feb 04, 1998

~3 min read

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Citation: sooperkanoon.com/357669
Court: Mumbai High Court
Judge: A.B. Palkar, J.
Decided On: Feb 04, 1998
Case Number: Criminal Application No. 207 of 1998
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, 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 ...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , 1973 - Sections 167(2) and 439

Parties & Advocates

Appellant / Petitioner

Vasant @ Mankya Bangade

Advocate T.A. Mirza, Adv.

Respondent

State

Advocate Ms. I.L. Bodade, A.P.P.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1973 - Sections 167(2) and 439
Reported In: 1998(3)ALLMR595; 1998(5)BomCR511

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, 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. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........on behalf of the state. therefore, the application is heard on merits.2. heard shri mirza, advocate for the applicant and smt. i. bodade, a.p.p. for the state. this application under section 482 of criminal procedure code, is filed in view of the fact that the learned 2nd additional sessions judge, nagpur had already passed an order of bail on an application moved by the applicant under section 439 of the criminal procedure code, on 7-1-1997. the learned additional sessions judge had also put certain conditions in consequence of release on bail of the applicants. however, it appears that the applicants could not procure any surety and surety bonds were not executed as per the said order. in the meantime, charge-sheet was filed and the case was committed to the sessions court.3. after the committal of the case to the sessions court when the applicants approached the learned sessions judge for furnishing security as per the order dated 7-1-1997 the learned sessions judge has passed the following order :-the bail order was passed by the 2nd a.s.j. on 7-1-1997 when investigation of crime was pending, bail was not furnished. charge-sheet was submitted in june, 1997 and case was submitted to the court of session in july, 97 and the case is made over to this court. the accused should seek fresh bail order on merits. in view of filing of charge-sheet and committal of the case to this court.4. the learned sessions judge has by the aforesaid order called upon the accused to seek fresh bail order on merits. the bail order passed by the 2nd additional sessions judge clearly shows that the application moved was under section 439 of criminal procedure code and it was not even an order passed under section 167(2) for non-filing of the charge-sheet within the period prescribed. the order granting bail was in force and it could not lapse by passage of some period due to inability of the applicants to secure a surety which would satisfy the requirements of law and, therefore, the.....

Full Judgment

ORDER

A.B. Palkar, J.

1. Smt. Bodade, the learned Additional Public Prosecutor accepts notice on behalf of the State. Therefore, the application is heard on merits.

2. Heard Shri Mirza, Advocate for the applicant and Smt. I. Bodade, A.P.P. for the State. This application under section 482 of Criminal Procedure Code, is filed in view of the fact that the learned 2nd Additional Sessions Judge, Nagpur had already passed an order of bail on an application moved by the applicant under section 439 of the Criminal Procedure Code, on 7-1-1997. The learned Additional Sessions Judge had also put certain conditions in consequence of release on bail of the applicants. However, it appears that the applicants could not procure any surety and surety bonds were not executed as per the said order. In the meantime, charge-sheet was filed and the case was committed to the Sessions Court.

3. After the committal of the case to the Sessions Court when the applicants approached the learned Sessions Judge for furnishing security as per the order dated 7-1-1997 the learned Sessions Judge has passed the following order :-

The bail order was passed by the 2nd A.S.J. on 7-1-1997 when investigation of crime was pending, bail was not furnished. Charge-sheet was submitted in June, 1997 and case was submitted to the Court of Session in July, 97 and the case is made over to this Court. The accused should seek fresh bail order on merits. In view of filing of charge-sheet and committal of the case to this Court.

4. The learned Sessions Judge has by the aforesaid order called upon the accused to seek fresh bail order on merits. The bail order passed by the 2nd Additional Sessions Judge clearly shows that the application moved was under section 439 of Criminal Procedure Code and it was not even an order passed under section 167(2) for non-filing of the charge-sheet within the period prescribed. The order granting bail was in force and it could not lapse by passage of some period due to inability of the applicants to secure a surety which would satisfy the requirements of law and, therefore, the learned Sessions Judge was obviously in error in refusing to consider the request of theapplicants to accept the sureties produced. Had the sureties not been furnished to the satisfaction of the Court, the Court could have refused to accept this security of those sureties but the order directing the applicants to apply again for bail appears to be totally unjust and not at all warranted by law. There is no provision under which the Sessions Judge could have said that the earlier order is not in force and, therefore, a fresh order is required to be passed. In this view of the matter, the application will have to be allowed. The order passed by the learned 1st Additional Sessions Judge, Nagpur on 22-1-1998 is hereby set aside and the learned Sessions Judge is directed to consider the request of the applicants for accepting the sureties as per the order dated 7-1-1997 by 2nd Additional Sessions Judge, Nagpur. This does not affect the liberty of the learned Sessions Judge to refuse to accept the surety in case the surety is not to the satisfaction of the Court. The application is disposed of.

5. Order accordingly.

Same Court & Year Mumbai · 1998 Same Parties Vasant @ Mankya Bangade vs State Same Subject Criminal Same Judge A.B. Palkar, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1973 - Sections 167(2) an...

Criminal