Hemand Doiphode and Another Vs. Dev Kapoor and Another - Court Judgment

Excerpt:
the case debated on the challenge to the magistrate who issued a process in private complaint under section 420 & 34 of the indian penal code, 1860- it was held that the perusal of the complaint showed that prima facie case under sections 420 & 34 of the code was made out and therefore the issue of the process could not be faulted. - 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].ordervishnu sahai, j.1. although this matter has been on the board of this court since a long time, the counsel for the petitioners has not chosen to make himself available. in the circumstances, i have no option but to decide the matter on merits with the assistance of mr. r.y. mirza, learned a.p.p.2. by this petition, the petitioners impugn the order dated 19-9-88 passed by the metropolitan magistrate, 30th court, kurla, bombay, whereby a process for an offence under section 420 read with section 34 of i.p.c. in pursuance of a complaint filed by respondent no. 1, has been issued against them. i have perused the complaint and the statement of the complainant recorded under section 200 of the criminal procedure code. in my view, a prima-facie case against the petitioners for an offence under section 420 read with 34 of i.p.c. is made out. that being the position, in my view, the impugned order cannot be faulted with.3. in the result, this revision application is dismissed. rule is discharged and interim order is vacated.office is forthwith directed to send copy of my order and the relevant papers to the trial court which is directed to decide the case as expeditiously as possible (preferably within 6 months from today) as the impugned order was passed nearly 7 years ago.4. revision dismissed.

Judgment:
ORDER

Vishnu Sahai, J.

1. Although this matter has been on the board of this Court since a long time, the Counsel for the petitioners has not chosen to make himself available. In the circumstances, I have no option but to decide the matter on merits with the assistance of Mr. R.Y. Mirza, learned A.P.P.

2. By this petition, the petitioners impugn the order dated 19-9-88 passed by the Metropolitan Magistrate, 30th Court, Kurla, Bombay, whereby a process for an offence under section 420 read with section 34 of I.P.C. in pursuance of a complaint filed by respondent No. 1, has been issued against them. I have perused the complaint and the statement of the complainant recorded under section 200 of the Criminal Procedure Code. In my view, a prima-facie case against the petitioners for an offence under section 420 read with 34 of I.P.C. is made out. That being the position, in my view, the impugned order cannot be faulted with.

3. In the result, this revision application is dismissed. Rule is discharged and interim order is vacated.

Office is forthwith directed to send copy of my order and the relevant papers to the trial Court which is directed to decide the case as expeditiously as possible (preferably within 6 months from today) as the impugned order was passed nearly 7 years ago.

4. Revision dismissed.