Silicon Electricals Vs. C. Kurup, Superintendent Central Excise, and 9 ors.

.....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 .....pendse, j.1. heard shri taleyarkhan [for the petitioners and shri sethna for the respondents.2. after arguments, i felt that it would be appropriate in the circumstances of the case to direct return of documents set out at exhibit 'd' to the petition to the petitioners on following conditions. shri taleyarkhan states that the documents set out at item nos. 1, 5, 10, 15 and 16 are not required by the petitioners, but the remaining documents are required to enable the petitioners to complete their returns for payment of sales-tax and income-tax. in these circumstances, the remaining documents should be returned to the petitioners on following conditions.(i) the respondents would take photostat copies of the documents to be returned to the petitioners at the expense of the petitioners. the petitioners shall deposit an amount of rs. 1000/- with the respondents within three days from to-day and on such deposit being made, the original documents should be returned to the petitioners within a period of two weeks therefrom. in case additional amount is required for making photostat copies the petitioners shall pay the said amount.(ii) the petitioners' is a partnership concern and shri taleyarkhan states that there are two partners. both the petitioners shall give an undertaking to this court that they will return back the original documents obtained from the respondents within a period of three months from the date of receipt thereof. both the partners will also give an undertaking that they will not tamper with any of the original documents, nor they will make any alterations or additions in the said documents. the affidavits giving undertaking to be filed within one week.(iii) shri taleyarkhan states that the petitioners have received the notice or summons issued by the respondents for production of additional documents and they would comply with the same.(iv) before the original documents are returned to the petitioners it should be initialled by the officers of the resp