Maroti Vs. Kusum - 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].b.g. deo, j.1. the trial court in misc. case no. 6/83 granted rs. 75/- as maintenance under section 125 of the criminal procedure code to the non-applicant here kusum. in revision the learned sessions judge enhanced the amount to rs. 200/- per month. so far as the liability to grant maintenance is concerned there is no doubt about it, since the husband has kept a mistress from whom he has a son. he cannot, therefore, compel the wife kusum to come back home. she has a right to reside separately and claim maintenance. so far as quantum is concerned the enhancement has been granted by the additional session judge, on the ground that the husband is an agriculturist having five to six hectares of land and is also doing some business of milk. taking into consideration the status of the patties and also taking into consideration the fact that the wife is admittedly earning rs. 3 to 4 as labourer the revisional court bar granted rs. 200/- per month, as maintenance from the date of the application before the magistrate which order has been impugned in this application under section 482, criminal procedure code. the learned additional session judge, however, has based his conclusion on the conjecture of income and assumed status of agriculturist of the. spouse. the trial court has considered the case and has granted rs. 75/- per month as maintenance and even taking into consideration that the wife is earning rs. 3 to 4 as labourer a sum of rs. 125/- per month would be a just sum for maintenance to her. the application is, therefore, partly allowed and modified as regards that of quantum.2. the wife is entitled for maintenance. the applicant husband shall pay rs. 125/- per month to the wife by way of maintenance from the date of original application by wife on condition that all the arrears upto date shall be paid within a period of three months. if such condition is not fulfilled the application of husband shall stand dismissed.