Mukhedkar Vs. The State of Maharashtra,1983 Cri LJ 1833

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Case Name:	Mukhedkar Vs. The State of Maharashtra,1983 Cri LJ 1833
Equivalent Citation:	1983 (2) BomCR 791, 1983 CriLJ 1833
Date Of Judgement:	27 June 1983
Court:	Bombay High Court
Case No:	Criminal Writ Petition No. 8 of 1983
Case Type:	Criminal Writ Petition
Petitioner:	Avinash Madhukar Mukhedker
Respondent:	State of Maharashtra
Bench:	MR. JUSTICE S.P. KURDUKAR
Referred:	State of West Bengal v. Jogindar Mallick Subodh Singh v. StateTaylor v. Taylor, (1876)Nazir Ahmed v. King Emperor
Statute/Sections/Article involved	The Constitution of India- Article 21 Article 227 Criminal procedure code- Section 155(2) Section 41(1)(d) Section 379

Introduction

This criminal writ petitioner under Article 227 of the Constitution is filed by the petitioner-accused challenging the legality and correctness of the order dt. July 13, 1982 passed by the Additional Sessions Judge, Thane[i]. This petition raises a neat question of law and in order to appreciate the rival contentions, it would be necessary to set out the allegation of the prosecution case. It is common ground that the petitioner was charged-sheeted under Section 124 of the Bombay Police Act, 1951.

Facts of the case

The petitioner seeks to challenge the maintainability of the criminal prosecution launched against him under Section 124, Bombay Police Act, 1951.[ii] When house of the petitioner was searched several articles of foreign make were found in his possession. These articles were not owned by the petitioner, but, however, he was found in possession of the same.
Upon further enquiry it was transpired that some of the articles of foreign make were sold by the petitioner to the witnesses and in regard to any of these articles the petitioner failed to account for such possession. It is further recited in the charge-sheet that there is reason to believe that these articles are stolen property or property fraudulently obtained and retained in possession by the petitioner.
The main contention raised in this application by the petitioner is that the investigation having been made by the police in non-cognizable offence without the order of the Magistrate the entire investigation is vitiated and, therefore, the trial cannot be held on the basis of such illegal investigation.
In support of this contention the petitioner strongly relied upon the provisions of Section 155(2) Cr.P.C. According to the petitioner in view of this mandatory provision contained in Section 155(2) Cr.P.C. no police officer could have investigated a non-cognizable offence without the order of the Magistrate having power to try such case or commit the case for trial. The petitioner therefore prayed that the trial is illegal and he be acquitted. It is common ground that no orders were obtained by the Investigating Officer from the competent Magistrate before the investigation was commenced in this case.[iii]
The learned trial Magistrate also on the question of nature of offence came to the conclusion that since the police have power to arrest without warrant under Section 41(1)(d) of the Code the offence under Section 124 of the Act in cognizable one. The provisions of Section 155(2) of the Code are not applicable to the present case. Consistent with these findings, the learned trial Magistrate rejected the aforesaid application filed by the petitioner.
Aggrieved by this order the petitioner preferred a revision application No. 20 of 1982 to the Sessions Court at Thane and the learned Additional Sessions Judge by his order dt. July 13, 1982 dismissed the revision application and confirmed the order passed by the trial Magistrate. The reasons given by the learned Addl. Sessions Judge are more or less on the same line as given by the learned trial Magistrate. It is against this order passed by the learned Additional Sessions Judge the petitioner has approached this Court under Article 227 of the Constitution.

Issue raised

whether an offence under Section 124 of the Act is cognizable or non-cognizable?
Whether a police officer has authority to arrest a suspect without warrant?

Contentions of the petitioner

Shri Chitnis, the learned advocate firstly urged that the offence in the present case under Section 124 of the Act is a non-cognizable offence and the Courts below were in error in holding that the present offence is a cognizable one. In order to ascertain as to whether the present offence is cognizable or non-cognizable one will have to go to the provisions of the Cr.P.C.
If the offence is proved under Section 124 of the Act, the Magistrate has to record a conviction and the punishment prescribed for the said offence is imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing be less than one month, and shall also be liable to fine, which may extend to five hundred rupees. So, the maximum punishment that could be awarded for an offence under Section 124 of the Act is one year imprisonment and fine up to Rs. 500/-
Advocate in support of his submissions strongly relied upon the judgment of the Calcutta High Court in State of West Bengal v. Jogindar Mallick 1979 Cri LJ 539. A somewhat similar question arose for consideration before the Calcutta High Court. There the charge-sheet under Section 33A of the Calcutta Suburban Police Act (2 of 1866) was filed. Section 33A of the Act is pari materia as S. 124 of the Bombay Police Act.[iv]

Contentions of the respondent

Shri Barday the learned Public Prosecutor appearing on behalf of the State urged that investigation although done by the police officer without any order from the Magistrate yet the investigation does not become illegal ipso facto and assuming there is some illegality or irregularity the same can be cured under Sections 460 and 465 Cr.P.C. I do not think that the irregularity or the illegality of the present nature can be cured under Section 460 as well as Section 465 Cr.P.C.
The advocate said that Sub-section (2) of Section 155 of the Code relates to the investigation by a police officer of a non-cognizable case without the order of the Magistrate having power to try such case or commit the case for trial. This is a mandatory provision and, in my opinion, having regard to this mandatory provision the investigating officer could not have investigated in the present offence without the order of the Magistrate having power to try or commit such case for trial.

Judgement

The offence under Section 33A is possession of anything which is reasonably believed to be stolen or fraudulently obtained and a failure on the part of the person to give account for such possession to the satisfaction of the Magistrate would make him liable to punishment. When such an offence is committed in presence of a police officer in any street or public place, then only a police officer can arrest him without a warrant in exercise of the powers conferred by Section 43(1) of the Act. It would thus appear that the power of the police officer to arrest for an offence under Section 33A is not plenary, but qualified, and can be exercised only when the conditions of Section 43(1) are satisfied, namely, that the offence is committed in his presence, in any street or public place. An offence under S. 33A can also be committed by a person by keeping anything in his house or godown and when the offence is committed in such manner, the police would not have any power to arrest the person concerned without warrant. Possession, as mentioned in Section 33A, by itself is an offence but when such offence is committed under certain circumstances as mentioned in Section 43(1), the police officer has the power to arrest without warrant. But if the offence is committed under different circumstances, the police officer will have no power to arrest without warrant.[v]
In my considered view, to bring an offence within the definition of “cognizable offence” under Section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest. If for commission of such offence under certain circumstances the police is given the power to arrest without warrant that would not make the offence cognizable. In that view of the matter and in view of the punishment provided for the offence under Section 33A of the Act it is not a “cognizable offence” under the First Sch. of the Code nor has the offence been made a cognizable one under the Act. The only power that has been given under the Act is that when it is committed under certain circumstances, the police has a right to arrest without warrant. The purpose for which such a power has been given to a police officer is also patent. When a person is found in possession of anything within the meaning of Section 33A of the Act on street or public place, by a police officer it will be ridiculous to suggest that the police officer will have to rush to a Magistrate to obtain a warrant for apprehending him. It must, therefore, be held that notwithstanding the power of the police officer to arrest without warrant, a person committing an offence under Section 33A of the Act, in exercise of the powers conferred by Section 43(1), the offence is not a cognizable one.”

With respect I am completely in agreement with the view taken by the Calcutta High Court.

It is, however, made clear that the Investigation Officer is at liberty to take such steps as he deems fit in accordance with law. The goods seized by the Police Officer during the investigation shall remain in their custody till July 30, 1983. If no such steps are taken by the police officer in regard to the offence alleged, to have been committed by the petitioner, the articles shall be returned to the petitioner on or after 1-8-1983.

Conclusion

It is a short and simple case where a non-cognizable offence was being investigated by the police without taking the serious order of the learned Magistrate concerned. The question is one of illegality and the question also is of not confirming to the procedure established by law.

written by – Y Sakshi Choudhary, College Name- Guru Ghasidas Central University, Semester- 4^th intern under legal vidhiya