Harshadbhai Shah and anr. Vs. Rani Kamla Raje Wd/O Kunwar Jaisinghrao Bhonsale and ors. - Court Judgment

Excerpt:
- 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 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 remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 4. having regard to the above facts, we were fully satisfied that he impugned order cannot be sustained since it is contrary to the provisions of order xxiii rule 3 of the civil procedure code and the decision of the supreme court referred supra.m.m. qazi, j.1. the impugned order has been passed by the joint civil judge (senior division), nagpur, on the basis of the compromise petition on 11-3-1983. there is no dispute that the compromise petition was not signed by all the parties. as many as five parties did not sign the compromise petition and as many as seven parties did not verify the same. inspite of this, the learned trial court accepted the compromise and directed that the decree be drawn in terms thereof. the learned trial court further directed that the 2/9th share of shalinidevi shall continue to remain with the court of wards till the rights of the parties entitled to her share were decided. it may be mentioned here that shalinidevi is alleged to have executed two wills-(1) dated 16-1-1982, under which the appellants claim to have been appointed as executors, and (2) dated 4-8-1982, under which mrs. ahirrao and rajendrasingh jadhao claim to be the legatees of shalinidevi. they have initiated probate proceedings which are still pending before the high court at bombay.2. mr. bobde, learned counsel appearing on behalf of the appellants, submitted that the impugned order is contrary to the provisions of order xxii, rule 3 of the civil procedure code. the portion of the aforesaid provisions, which is material for our purposes reads thus :-'where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there with so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.' the mere reading of the above provisions would show that the compromise petition must be signed by all the parties. there is no dispute that the compromise petition must referred supra was not signed by all the parties and yet, the trial court acted on the compromise petition and directed that the decree be drawn in terms there of mr. ahirrao, advocate, who held a special power of attorney on behalf of shalinidevi, though signed the compromise petition, has rightly made an endorsements below his signature to the effect that it was subject to the condition of being confirmed by shalinidevi. shalinidevi was alive when the compromise petition was filed, but she was dead when the compromise petition came up for verification. she died on 12-8-1982. having regard to all these facts, the signature of shri ahirrao on the compromise petition has no meaning. moreover, the power of attorney does not authorise shri ahirrao to enter into a compromise on behalf of shalinidevi.3. mr. bobde has invited our attention to the decision reported in : [1988]2scr401 gurpereet singh v. chatur bhuj goel. paragraphs 10 and 11 of the said judgement reads thus :-'under rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a complete agreement between them. to constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. when the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. the court must therefore insist upon the parties to reduce the terms into writing.' in our considered opinion, the view to the contrary expressed by the high court in manohar lal v. surjan singh, that the first relates to a lawful agreement or compromise arrived at by the parties out of court, does not seem to be correct. shandhawalia, c.j., speaking for himself and tawatia, j., observes that the word 'or' makes the two parts disjunctive and they visualise two distinct and separate classes of compromise. according to the learned judges, the first part relates to a lawful agreement or compromise arrived at by the parties out of the court, while the second is applicable where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit. such a restricted construction is not warranted by the language used in rule 3. the word 'satisfies' denotes satisfaction of the claim of the plaintiff wholly or in part and for this there need not be an agreement in writing signed by the parties. it is open to the defendant to prove such satisfaction by the production of a receipt or payment through bank or otherwise. the satisfaction of the claim could also be established by tendering of evidence. it is for the court to decide the question upon taking evidence or by affidavits as to whether there has in fact been such satisfaction of the claim and pass a decree in accordance with order. xxii, rule 3 of the code.'the decision cited supra fully supports the contention of mr. bobde that a compromise petition cannot be acted upon unless and until it is signed by all the parties.4. having regard to the above facts, we were fully satisfied that he impugned order cannot be sustained since it is contrary to the provisions of order xxiii rule 3 of the civil procedure code and the decision of the supreme court referred supra.5. mr. gohokar, the learned counsel appearing for respondent no. 1 in first appeal no. 195 of 1983, submitted that a direction be given to the trial court to dispose of the matter without waiting for the result of the probate proceedings which are pending before the high court at bombay. we do not think it necessary to issue such direction in this order since we are merely remanding the matter back to the trial court and the trial court will also be free to proceed with the suits according to law from the stage when the impugned order was passed. it is needless to mention here that the trial court will also be free to decide the issues on applications that may arise before it.6. mr. bade, advocate, appearing for the court of wards, tried to support the impugned order on the ground that the same was passed on the basis of the compromise petition, which was fair and in the interest of all concerned. this is exactly the reason given by the trial judge for passing the impugned order. however, it is not possible to sustain the impugned order even if it is otherwise just and proper since it is contrary to the provisions of order xxiii, rule 3 of the civil procedure code.7. we are aware that several years have already passed and the remand may cause some hardship to the parties particularly if the matter is delayed inordinately. we therefore, direct the trial court to dispose of the suits as expeditiously as possible. both the appeals are allowed. the impugned order is quashed and set aside. however, there will be no order as to costs.