Pandurang Dashrath Patil and ors. Vs. Kailash Chandra Mani Ram Chavan and anr. - 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].v.v. vaze, j. 1. kishor pandurang thakare (patil), an young man of athletic built and active haits was working as a junior clerk in the a.r.t. office at dhule. a bus belonging to m.p. state road transport corporation and driven by the opponent kailashchandra chavan dashed against a scooter driven by kishor thakare on 18th november 1980 on the national highway known as agra road. as kishor died as a result of the accident his parents filed motor accident claim no. 14 of 1981 before the tribunal at dhule which awarded rs. 13,000/- as damages against the opponents. being dissatisfied with the quantum of compensation, the parents have come up in this appeal.2. the only ground that has been urged in this appeal is regarding the manner in which the compensation has been arrived at by the tribunal. the deceased was working in the pay-scale of rs. 260-495 and did not have prospects of promotion for some 10 years whereafter he would have become a senior grade clerk accountant. the tribunal found that the deceased was getting rs. 550/- and out of this amount dependency of the parents would have been rs. 300/-. as the ages of the parents were 54 and 45 years the tribunal took a multiplier of 10 years and arrived at the compensation of rs. 36,000/-.3. it appears that the deceased's father was a government servant and hence it was the mother subhadrabhai who would be called really dependent upon the son. as her age was 45 years at the time of accident we find that the tribunal erred in taking the multiplier of 10 years only and we find that the ends of justice would meet by taking the multiplier as 15 years.4. however, in this long span of 15 years it is reasonable to presume that kishore thakare would have married and raised a family as a result of which the allowance which he was paying to his parents would get reduced because in that period he would not have earned any substantial promotion to off-set increased liabilities. we calculate the dependency at rs. 100/- per month during the last span of 5 years. but so far as the first 10 years are concerned. we agree with the tribunal that the parents could have reasonably expected rs. 300/- per month from their son.5. coming to the question of deductions, appears that the mother of the deceased got payment of rs. 20,000/- from the insurance policy which was a double benefit policy. another rs. 1,000/- was given by the m.p. rajya mandal as ex-gratia grant to the claimants and we do not think that the tribunal was justified in making the deductions of this amount from the quantum of compensation because from the very nature of the payment it was an ex-gratia it could not form a deal of settlement of the compensation. in this view of the matter we find that the claimants would be entitled to get rs. 10012=1,2005=6,000-1,000 on account of lump sum payment, which works out to rs. 5,000/- in addition to the amount of rs. 10,000/-already determined by the tribunal. to this figure we would add rs. 4,000/-on account of non-pecuniary loss as has been done by the tribunal and we arrive at the figure for rs. 19,000/-.6. in the result, appeal succeeds partly and for the figure of rs. 13,000/-appearing in the second line of the operative portion of the order, the figure of rs. 19,000/- is substituted.