Mrs. Shamimano Mohd. Rafique Shaikh Vs. Satish Sahney, the Commissioner of Police and ors. - Court Judgment

Excerpt:
national security act, 1980 section 3(2) - constitution of india 1950, articles 22(5), 226 - detention - challenged on ground of delay in forwarding representation - detenu sent his representation to state government, but same not forwarded to state government till date of filing the petition - held, it constituted infringement of detenu's constitutional right under article 22(5) of constitution.;it is not in dispute that the detenu's representation to the respondent no. 2 (state of maharashtra) has not been forwarded to it. since the detenu had a legal right to make representation to the respondent no. 2 and the latter was under an obligation to dispose of the same at the earliest and the same has not been done by it, there has been an infraction of the fundamental right conferred on the detenu by article 22(5) of the constitution of india. - 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].vishnu sahai, j.1. heard mr. tejas muzumdar for the petitioner, mr. d.g. bagwe for respondents nos. 1, 2, 4 and 5 and mr. h.v. mehta for respondent no. 3.2. by this petition, the petitioner, who is the mother of the detenu mohammed asif rafique shaikh, seeks to impugn the order dated 13th july, 1995, passed by the commissioner of police, greater bombay, respondent no. 1 detaining the detenu under the national security act.3. the prejudicial activities of the detenu necessitating the issuance of the order of detention have been detailed in the grounds of detention; a true copy of which has been annexed as exhibit 'c' to the petition. since in our view a reference to those grounds is not necessary for the disposal of this petition, we are not recapitulating them in this order.4. the short ground on which counsel for the petitioner mr. tejas muzumdar assails the detention order is contained in ground 7(l) of the petition. the substance of ground 7(l) is that the representation made by the petitioner to the state government, though handed over to the officers of respondent no. 4 in whose prison the detenu is being detained, for being forwarded to respondent no. 2, the state of maharashtra, has till date not been forwarded to the said respondent.the contention of the learned counsel for the petitioner is that the detenu had a legal right to make a representation to the state government and it was also obligatory on the part of the latter to have decided it without any loss of time. counsel for the petitioner also urged that since in the instant case the representation of the detenu till date has not been forwarded to the state government, and therefore, not considered by it, there has been an infraction of his fundamental right guaranteed by article 22(5) of the constitution of india and the impugned order of detention warrants to be quashed.ground 7(l) pleaded in the petition has been replied to in paragraph 3 of the affidavit filed by mr. m.d. ambade, desk officer, government of maharashtra, home department (special), mantralaya, mumbai. a perusal of the aforesaid paragraph shows that it is not in dispute that the detenu's representation to the respondent no. 2 (state of maharashtra) has not been forwarded to it. since the detenu had a legal right to make representation to the respondent no. 2 and the latter was under an obligation to dispose of the same at the earliest and the same has not been done by it, there has been an infraction of the fundamental right conferred on the detenu by article 22(5) of the constitution of india.5. in the aforesaid situation, this petition has to be allowed. accordingly, this writ petition is allowed and the impugned detention order dated 13th july, 1995 passed by the respondent no. 1 detaining the detenu under the national security act is set aside and it is directed that the detenu be set at liberty forthwith unless wanted in some other case. rule made absolute.