Narayan Shamba Kubal Vs. Ankush Pandurang Halarnkar - 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]. - the matter was fixed on 11.4.2007. the notice came to be issued on 27.2.2007. notices were issued well in time. 3. on 11.4.2007, the petitioner as well as his advocate remained absent.dalvi r.s., j.1. rule, returnable forthwith.2. the petitioner was appointed as cabeca-de-casal (cc)/administrator of the estate of shamba yesso kubal and his wife indira shambha kubal and pandurang yesso kubal and his wife savitri pandurang kubal. the appointment was made on 31.1.2005. a date for recording the petitioner's statement on oath under article 1369 of the portuguese civil code remained to be fixed. the petitioner also did not apply for getting the same fixed. the matter remained at that until 22.2.2007 when notice was directed to be issued to the petitioner's advocate for the purpose of making a statement on oath by the petitioner. the matter was fixed on 11.4.2007. the notice came to be issued on 27.2.2007. notices were issued well in time. the petitioner was to appear for making his statement on oath.3. on 11.4.2007, the petitioner as well as his advocate remained absent. the statement on oath was not made though the petitioner was notified for that purpose. the petitioner was directed to take steps. the inventory proceedings were adjourned for steps on 4.7.2007.4. on 4.7.2007 the petitioner's advocate was present. the petitioner's presence is not noted. since the petitioner was not himself present he obviously could not take oath of office. an application came to be made by the respondent as an interested party to be appointed as cabeca-de-casal. the matter was adjourned for the petitioner's reply to 13.8.2007. on 13.8.2007, the petitioner again remained absent. his advocate was also absent. his reply was not filed. the court observed that the petitioner was not interested in carrying out his responsibility as cabeca-de-casal. hence the petitioner was removed from the post of cabeca-decasal.5. the petitioner has challenged his removal. the noting shows that the petitioner was appointed upon his own application. when he was appointed he was represented through his advocate. the notice therefore, upon his advocate was rightly issued. the petitioner was accordingly notified as per article 1369. despite he being notified since 27.2.2007, he did not take steps. he did not even reply to the other application taken out for his removal and for appointing another person.6. his advocate contends that the petitioner was not healthy at the relevant time. cause has not been shown by the petitioner to the learned judge. the removal is more than two and a half years after the appointment of the petitioner. the petitioner has not taken a single step upon his appointment. he has not taken oath on office upon himself. the petitioner's challenged his removal cannot be sustained. the order relating to his removal cannot be interfered with.7. the petitioner has challenged the appointment of the respondent. the respondent is stated to be the son-in-law of pandurang kubal. mr. lotlikar, learned counsel on behalf of the respondent fairly concedes that the respondent could not have been appointed as cabeca-de-casal. one of the heirs of the estate leaver only can be appointed. hence the appointment of the respondent deserves to be set aside. upon the removal of the petitioner, the court will have to consider the appointment of another cabeca-de-casal. the petitioner's removal having been seen to be correctly made after sufficient notice and upon seeing that the petitioner did not take any steps and did not even show cause against his removal, the removal cannot be set aside. hence the following order:orderthe order of removal stands. the order of appointment of the respondent as cabeca-de-casal is by consent, set aside. the learned judge shall appoint another cabeca-de-casal in place of the petitioner upon complying with due legal procedure. writ petition stands disposed off accordingly.