Vilas B. Parab Vs. Union of India (Uoi), Through Ministry of Law and Justice, - 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].nishita mhatre, j. 1. this petition has been filed against the order dated 21st june 2001 passed by the central administrative tribunal rejecting original application no. 722 of 2000 of the petitioner as there was delay in filing the same.2. the petitioner, who is employed as a casual labourer with the respondents, had requested the respondents to regularise him in service. on his request and representations being turned down, he filed original application no. 722 of 2000 on 29th september before the central administrative tribunal. according to the tribunal, the period of limitation runs from 8th june 1999 when the first representation made by the petitioner was rejected. the tribunal has held that there is a delay and under section 21 of the administrative tribunals act, 1985, the tribunal cannot entertain an delay application filed after the period of limitation had expired. the tribunal has held that repeated representations made by the petitioner would not cure the delay in filing the original application.3. after hearing counsel for both the parties and on perusal of the proceedings, we find that the last representation was made by the petitioner on 22nd october 1999 which was disposed of only on 10th july 2000. the original application was filed on 29th september 2000. in our view, this delay is not fatal to the application and the application should be heard on merits. section 21 in fact empowers the tribunal to condone the delay and in the circumstances the tribunal ought to have heard the application on merits after condoning the delay.4. in the circumstances, we allow the writ petition and set aside the order of the central administrative tribunal dated 21st june 2001. the delay in filing original application is condoned. original application no. 722 of 2000 is remanded to the central administrative tribunal for hearing on merits.5. rule accordingly made absolute in terms of prayers (a) and (b) with no order as to costs.6. in view of the disposal of the writ petitions, nothing survives in notice of motion no. 392 of 2003 which is disposed of as infructuous.certified copy expedited.