Ramjitayappa Chavan Vs. State of Maharashtra and 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 .....b. lentin, j.1. to equate public interest with govt. convenience is a mistake. such is the ratio of this judgment.2. the petitioner joined the police force as a police constable on 1st october, 1955. in due course of time he was promoted to head constable. on 29th april, 1987, an order of compulsory retirement was passed against him. hence the present writ petition.3. the impugned order is passed under sub-clause (b) of sub-rule (4) of rule 10 of the maharashtra civil services (pension) rules, 1982. by this order, the petitioner is compulsorily retired on the ground that he has completed 52 years of age and as such, has completed 31 years of service. hence he is compulsorily retired for the purpose of convenience of government.4. no affidavit in-reply has been filed.5. the impugned order is on the face of it bad in law. it does not conform to the provisions of rules 10(4)(b). that rule empowers the authority to compulsorily retire government servants if it is in the public interest to do so and also empowers govt. to retire class iii government servants after they have attained the age of 55 years.6. in the present case, the petitioner who was born on 17th september, 1934, would be completing 55 years in 1989 and had not completed it on 29th april, 1987 when the impugned order was passed. further sub-rule (4) does not provide for compulsory retirement on the ground of government's convenience as stated in the impugned order, but in public interest. for obvious reasons, the one cannot be equated with the other. thus on both these counts, the impugned order must be set aside.7. the writ petition is allowed in terms of prayer (vi). the petitioner shall be entitled to all the benefits due to him as if the impugned order had not been passed. 8. the rule is made absolute accordingly with costs.