In Re: Suman Motels Ltd. - 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]. - 3. i am satisfied that the petitioners have made out a sufficient cause for abridging the time.f.i. rebello, j.1. heard forthwith. leave under rule 19(3) of the companies (court) rules, 1959, granted to the applicant to take out a judges summons in terms of draft judges summons handed in judges summons returnable forthwith.2. by the present application, the petitioners have prayed for condonation of delay in publication of the advertisement of notice convening the meeting. learned counsel has drawn my attention to rule 7 of the companies (court) rules, 1959. in terms of rule 7 the court may in cases in which it shall deem fit, extend or abridge the time appointed by these rules as justice of the case may require. in so far as publication in the newspapers is covered by rule 74. that rule sets out that notice of the meeting shall be advertised in such newspapers and in such manner as the judge maydirect not less than 21 clear days before the date fixed for the meeting. if rule 74 is read with rule 7 of the companies (court) rules, 1959, it is clear that the court in cases which it deems fit can extend or abridge the time appointed by the rules or fixed by an order of the court. it is no doubt true that advertisement was ordered in terms of rule 74 pursuant to order of this court. the order was in terms of rule 74. in terms of rule 7 the court while passing the order of advertisement could have abridged the time. if that could have been done at the stage of making the order, i see no reason why this court cannot do so when an order has already been passed, to abridge the time. the two cases would be similar. in one case time would be abridged before the meeting is called. in the other, after notice is issued. all that the court must do is to satisfy itself that no prejudice will be occasioned to the persons who have to attend the meeting being unable to attend the meeting because of short notice. in the instant case, the delay is, if at all, of one day. there has been substantial compliance with the requirement of notice. learned counsel seeks to point out that in fact there will be no delay at all. i need not go into the issue as in the present application the petitioner had sought condonation of delay.3. i am satisfied that the petitioners have made out a sufficient cause for abridging the time. in the light of the matter, the petition is made absolute in terms of prayer clause (a).