Full Bench quashed a magistrate order directing police to obtain court permission before arresting accused persons, holding such permission is not mandatory under Section 156(3) Cr.P.C.
The impugned order directing police not to arrest without court permission is quashed and set aside.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.702 OF 2007
Shri.Laxminarayan Vishwanath ]
Arya, Aged 52 years, ]
Occ: Business, Residing at ]
Ravishankar Girdharilal Sharma ]
Chawl, Room No.2, Tanaji Nagar ]
Bandongori, Kurar Village, ]
Malad East, Mumbai-400097 ]..Petitioner
Vs
1. The State of Maharashtra ]
Through Sr.Inspector of Police,]
Vakola Police Station, Mumbai ]
4000 055 ]
2. M/s.Lovely Hotel Pvt.Ltd. ]
(A private Ltd. Company ]
registered under the Companies ]
Act, 1956) having office at ]
Plot No.53, TPS-IV, ]
Santacruz (E), Mumbai-400055 ]
3. Manoj B.Gupta, ]
Adult, ]
4. Vimal K.Gupta, Adult, ]
5. Bhupendra K.Gupta, Adult, ]
6. Virendra K.Gupta, ]
7. Dinesh K.Gupta, ]
Adult, ]
All Directors of the ]
Respondent No.2, having their ]
address at Lovely Hotels Pvt. ]
Ltd. Plot No.53, TPS-IV, ]
Nehru Road, Santacruz (E), ]
Mumbai-4000055 ]..Respondents
...
Mr.K.H.Giri Advocate for Petitioner
Mr.S.R.Borulkar P.P. for Respondent No.1-State
Mr.R.S.Mishra Advocate for Respondent
Nos. 2,3,5,6 & 7.
CORAM: R.M.S.KHANDEPARKAR, AND
SMT.V.K.TAHILRAMANI, JJ.
DATE : OCTOBER 05, 2007
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ORAL JUDGMENT: [PER R.M.S.KHANDEPARKAR,J,]:
1. The learned advocate for the Respondent Nos.2,
3, & 5 to 7 have placed on record the xerox copy of
the Death Certificate of Respondent No.4. The same
discloses that the Respondent No.4 expired on 8th
February, 2000, much prior to the filing of the
petition as the petition was filed on 10th April,
2007. Consequently the name of Respondent No.4 is
directed to be struck off from the cause title.
2. Heard. Rule. By consent, rule is made
returnable forthwith.
3. In this petition, the Petitioner has challenged
the order dated 24th January, 2007 passed by the
learned Metropolitan Magistrate, 32nd Court, Bandra
in C.C.No.5/M/2007 whereby while referring the
matter for investigation in exercise of powers
under Section 156(3) of Cr.P.C. the learned
Magistrate has directed the police authorities not
to arrest the accused persons without permission of
the Court. The challenge in the petition is
restricted to that part of direction which requires
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the police authorities to take prior permission of
the Court for arresting the accused.
4. When the matter came up for admission, the
Division Bench hearing the matter considered it
appropriate to refer the matter to the larger Bench
in view of the divergent views expressed in the
decisions viz. Jagannath Singh V. Dr.Shri.Ajay
Upadhyay & Anr., 2006 Cri.L.J. 4274 and
M.C.Abraham & Ors. V. State of Maharashtra &
Ors., 2003 Bom.C.R. (Cri.) 650. Consequently, the
Full Bench of this Court under its judgment dated
19th July, 2007, have answered the three different
questions which were referred for consideration and
has held that it is neither obligatory nor
mandatory for a police officer to obtain the leave
of the Court before arresting an accused against
whom FIR is registered pursuant to the order passed
by the learned Magistrate under Section 156(3) of
the Code of Criminal Procedure, 1973. It has been
further observed that the exercise of discretion by
the arresting officer, should be exercised with
greater sensitivity and in accordance with the
settled canon of criminal jurisprudence, while
keeping the facts and circumstances of each case in
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mind and it is reminded to the Investigating
Agencies that order under Section 156(3) of Cr.P.C.
may be passed by the Court as a result of failure
to perform its duty on the part of the
Investigating Agencies. It has been further held
by the Full Bench that the 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 and in that regard, reliance is placed in the
decision of the Apex Court in the matter of
M.C.Abraham (Supra). It was further ruled that
judgment of the Division Bench of this Court in
Jagannath Singh (Supra), does not lay down the
correct proposition of law. Consequently, the
point as to whether the police requires prior
permission of the Court for arresting the accused
consequent to the direction received from the
Magistrate for conducting investigation in terms of
Section 156(3) is well settled by the decision of
the Full Bench. It has been clearly held that
police authority does not require such prior
permission. Undoubtedly, the power in that regard
has to be exercised with required restraint and
bearing in mind the provisions of law in relation
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to arrest and detention. Consequently, the
impugned order of the learned Magistrate to the
extent it directed that the accused should not be
arrested without permission of the Court, cannot be
sustained.
5. Hence, the petition succeeds. The impugned
order to the extent it directs the police authority
not to arrest the accused without prior permission
of the Court is hereby quashed and set aside. It
is made clear that remaining portion of the
impugned order is not interfered with. Rule made
absolute accordingly in above terms with no order
as to costs.
[R.M.S.KHANDEPARKAR, J.]
[SMT.V.K.TAHILRAMANI,J.]
2 issues framed by the court
Whether police require prior permission of the court to arrest accused consequent to a direction under Section 156(3) Cr.P.C.
Whether the order directing police not to arrest without court permission under Section 156(3) Cr.P.C. can be sustained.
Colour shows how this judgement treated each authority
Jagannath Singh V. Dr.Shri.Ajay Upadhyay & Anr.Distinguished¶15
Jagannath Singh V. Dr.Shri.Ajay Upadhyay & Anr., 2006 Cri.L.J. 4274 · Who else cites this
M.C.Abraham & Ors. V. State of Maharashtra & Ors.Followed¶18
M.C.Abraham & Ors. V. State of Maharashtra & Ors., 2003 Bom.C.R. (Cri.) 650 · Who else cites this
1 provisions across 1 enactments
Shri.Laxminarayan Vishwanath Arya
The State of Maharashtra
M/s.Lovely Hotel Pvt.Ltd.
Manoj B.Gupta
Vimal K.Gupta
Bhupendra K.Gupta
R.M.S.KHANDEPARKAR
SMT.V.K.TAHILRAMANI
As recorded by the court registry
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