Afak Shabbir Khan vs The State Of Maharashtra, 2013 Bomb (Cri) 242

CASE NAME:	Afak Shabbir Khan vs The State Of Maharashtra & Anr o
CITATION	2013 bomb cr(cri) 242
CASE TYPE	Criminal cases
CASE NO.	CRIMINAL WRIT PETITION NO.2428 OF 2012
COURT	Bombay High court
APPELLANT	Afak Shabbir Khan
RESPONDENTS	The State Of Maharashtra & Anr
BENCH	A.M. Khanwilkar, R.Y. Ganoo
JUDGEMENT DAY	6 September, 2012

Facts of the case:-

• In this case petitioner, SQ Pathan has been arrested on the basis of connection with is admittedly punishable with imprisonment for 7 year and below.
• A writ  petition is file before the court that the petition has been arrested illegally and has been detained contrary to the provision of the law.According to the petitioner, by virtue of the amended Section 41 of the Criminal Procedure Code, in particular, clause (b) of sub-section (1) thereof, which has come into effect from 1^st November, 2010, it was imperative for the police officer to record reasons “in advance” justifying the arrest of the accused involved in such offence. Only then, he can assume power to arrest the accused involved in such crime. That procedure has not been followed in the present case.

Two reliefs are claimed in this petition.

• The first is to entrust the investigation of the criminal case to an independent investigating agency.
• The second relief is to compensate the petitioner for his illegal arrest and detention contrary to the provisions of law.

Arguments of the petitioner and the court held:-

• With regard to the first relief, at the instance of the accused, the question of transferring investigation to some other agency and more particularly in absence of any allegation of bias against the present investigating officer or any attempt on his part to destroy the available evidence, does not arise.
• It will be useful to advert to the exposition of the Apex Court in the case of Divine Retreat Centre vs. State of Kerala & Ors. Reported in (2008) 3 SCC 542. Notably, the investigating officer has not been impleaded as respondent by name. Thus, even if there is vague allegation of bias of the investigating officer against the petitioner, that plea cannot be taken forward.
• The argument of the petitioner, is that, at the time of commission of offence, he was not present on the scene of offence; but was SQ Pathan 2/8 3 2428.12 present at Goregaon along with his pregnant wife, where he had gone for a medical check-up of his wife. This stand is sought to be supported on the basis of mobile telephone record indicating his physical location at the relevant point of time.
• Assuming that it is open to the petitioner to take this plea being a circumstance in his favour, but that will have to be pursued as his defense, required to be proved by him at the trial. The argument proceeds that the investigating officer was obliged to investigate even this aspect. This argument does not commend to us. The investigating agency cannot be burdened with the investigation of the defense case. That is not the requirement of law.
• The court held that no doubt, the investigating officer is expected to conduct the investigation fairly and take into consideration all the circumstances, material and evidence that comes to his notice, against as well as favourable to the accused, collected during the investigation. But that does not mean that the investigating officer can be faulted for not thoroughly investigating the defense version and to transfer the investigation on that count. That, by itself, cannot be the basis to doubt the credibility of the investigation and in particular to infer bias of the investigating officer. The first relief as claimed, therefore, cannot be taken forward. The same is rejected.    

•  Reverting to the second relief, the argument of the petitioner, is that, he was arrested in connection with offence, which is, admittedly, punishable with imprisonment for seven years and below. According to the petitioner, by virtue of the amended Section 41 of the Criminal Procedure Code, in particular, clause (b) of sub-section (1) thereof, which has come into effect from 1^st November, 2010, it was imperative for the police officer to record reasons “in advance” justifying the arrest of the accused involved in such offence. Only then, he can assume power to arrest the accused involved in such crime. That procedure has not been followed in the present case.
• The court held that the provision requires the police officer, who intends to arrest the accused person, in connection with such offence, to record his reasons “while he proceeds to arrest the person”. There is nothing in the said provision which requires him to record his satisfaction about the necessity to arrest the accused, in any office record “before” he proceeds to arrest the person.
• It held that after interpretation it predicates that the accused involved in commission of specified offences under Section 41(1)(b), may be arrested only if the police officer is satisfied about the necessity of his arrest on grounds provided for. That is the indefeasible rule.Section41(1)(b) read as :-

Section 41. When police may arrest without warrant.-

 (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

  (a) who commits, in the presence of a police officer, a cognizable offence;

     (b)   Against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e)as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”

• The court held that each of the stipulations in sub-clause (ii) above, i.e. (a) to (e)  is mutually exclusive. For, it is separated by words `or’. A priori, even if one specified reason appeals to the police officer for arresting the person involved in commission of the stated offences – where the police officer has reason to believe that the person has committed the offence, is good enough to empower him to arrest the accused. Indeed, he is expected to and must record his reason(s) in writing which influenced him to arrest the person.
• That he can record even at the time of arrest of that person. The expression “while making such arrest” leaves no manner of doubt that it would mean “at the time of making such arrest” or “during the arrest instantly”. It can be recorded contemporaneously.
•  In the present case, these requirements have been fully complied with. For, the format of the arrest panchnama prepared while arresting the SQ Pathan  petitioner, the original copy whereof was produced before us, in no uncertain terms.
•  From the original file produced before us, it is noticed that the copy of the said arrest memo-cum-panchnama has been duly served on the petitioner. It has been acknowledged by the petitioner himself in the presence of witnesses. His signature has been obtained by the police officer on that document.
• Honourable court also held that it is a different matter that the petitioner in the present petition has asserted that he was never served with copy thereof. However, we are not impressed with this stand. For, no such grievance appears to have been made before the Magistrate when the petitioner was produced. Nothing prevented the petitioner to take that stand before the Magistrate or at least place the said grievance on record contemporaneously before the appropriate forum.
• . The court held that this clearly indicates the satisfaction recorded by the police officer about the necessity to arrest the petitioner in connection with the specified offence, in consonance with the conditions  specified in Section 41(1)(b) as amended. It is, therefore, not a case of illegal arrest or detention of the petitioner.
• Taking any view of the matter, therefore, this petition is dismissed, being devoid of merits.  

Conclusion:-

Cr.P.C. S.41 mentioning reasons in the arrest panchanama is held sufficient compliance of recording reasons for arrest.   The court held that the provision requires the police officer, who intends to arrest the accused person, in connection with such offence, to record his reasons “while he proceeds to arrest the person”. For, the format of the arrest panchnama prepared while arresting from the original file produced before us, it is noticed that the copy of the said arrest memo-cum-panchnama has been duly served to the person is to be held sufficient compliance regarding the record of reason of arrest.

Thanks,

This article is written by Aditya Kumar of ICFAI Law School, an intern under Legal Vidhiya