In one 156(3) Cr.P.C case police shall not arrest the accused without taking permission from magistrate

06-12-2001 -Criminal Procedure Code, 1973 (CrPC) – Section 156 – Arrest of accused – Permissibility – If the police, after preliminary investigation, discover some reliable evidence of the involvement of accused in the offence and if the police require his arrest for the purpose of investigation, it would be open to the police to place the facts and material before the Magistrate, who will consider whether arrest on those facts and material would be necessary for the purpose of investigation or not, and accordingly issue or refuse to issue warrant of arrest.

(2002) CriLJ 4292 : (2002) 1 DMC 736

ALLAHABAD HIGH COURT

SINGLE BENCH

( Before : Sushil Harkauli, J )

MASURIYADIN @ NATE AND OTHERS — Appellant

Vs.

ADDITIONAL SESSIONS JUDGE AND OTHERS — Respondent

Criminal Misc. Application No. 6193 of 2001

Decided on : 06-12-2001

Criminal Procedure Code, 1973 (CrPC) – Section 156(3), Section 482

Counsel for Appearing Parties

Hare Krishna Mishra, for the Appellant; A.G.A., for the Respondent

JUDGMENT

Sushil Harkauli, J.—This petition u/s 482, Cr.P.C. has been filed by the three accused challenging the order passed by a Magistrate directing investigation by police into an alleged offence of dowry death. I have heard the learned Counsel for the applicants and the learned Assistant Govt. Advocate.

THE FACTS :

2. An application u/s 156(3),. Cr.P.C. was moved by the opposite party No. 4 alleging that his daughter had been married to the applicant No. 1 three years ago. She was being harassed for dowry and suddenly on 4.1.2001 the father of the girl heard that the applicants had murdered the girl and thrown her on the railway line. On this application the learned Magistrate passed an order dated 25.4.2001 directing the police to register and investigate the case.

3. A revision filed by the applicants against the order of the Magistrate has been dismissed’ by the Additional Sessions Judge, Court No. 12, Allahabad by judgment dated 24.7.2001.

4. The applicants are relying upon a compromise entered into between the parties, a copy of which has been filed as Annexure 2 with the affidavit, in which girl’s side has admitted that the husband’s side is innocent and not guilty and certain other terms were agreed between the parties.

5. It has been argued by the learned Counsel for the applicant that by way of after-thought this application u/s 156(3), Cr.P.C. was moved by the father of the girl.

A GENERAL PROBLEM :

6. Orders u/s 156(3), Cr.P.C. merely mean that an alleged cognizable offence should be investigated. It should not normally be open to the accused to say before the Revisional or the High Court that the allegation about a cognizable offence should not even be investigated. Thus interference by superior Courts with an order of a Magistrate u/s 156(3) should normally be confined to cases in which there are some very exceptional circumstances.

7. However, the major problem faced by the accused persons in such cases is the apprehension of arrest pending investigation by the police, and more importantly the apprehension about misuse by the police of this power of arrest, ft is this apprehension which is causing the accused to file revisions and thereafter applications u/s 482, Cr.P.C. or writ petitions. Much of this litigation in superior Courts can be curtailed if every Magistrate while passing an order u/s 156(3), Cr.P.C. also examines, having regard to the peculiar facts and circumstances of each case, the advisability of including in his order an incidental direction as to whether the power of arrest by the police for the purpose of that investigation should be controlled by saying that the police will not make arrest for the purpose of investigation without first obtaining a warrant for the arrest from the Magistrate.

8. The power to arrest without warrant in cognizable offences is no doubt conferred upon the police by Section 41, Cr.P.C. (Only Clause (a) of Sub-section (1) of that section is relevant for the present case). But that power has been subjected to the control and supervision of a Magistrate by virtue of Article 22(2) of the Constitution of India and Section 167, Cr.P.C. It is also well settled that arrest is part of investigation . It may be kept in mind that this investigation is under directions of a Magistrate and is thus slightly different from the normal investigation of a cognizable offence. Wherever a power to do something is conferred, all powers ancillary and incidental to achieving that purpose are necessarily implied. Thus the Magistrate while exercising his power of directing investigation can issue further incidental directions with regard to the investigation as above.

9. In those cases where such a restriction is placed by the Magistrate, if the police, after preliminary investigation, discover some reliable evidence of the involvement of accused in the offence and if the police require his arrest for the purpose of investigation, it would be open to the police to place the facts and material before the Magistrate, who will consider whether arrest on those facts and material would be necessary for the purpose of investigation or not, and accordingly issue or refuse to issue warrant of arrest.

10. The Registrar General of this Court will get a copy of this order circulated to all the Judicial Magistrates of the State within two weeks.

ORDER

11. In view of what has been stated above, it is directed that for the investigation pursuant to the Magistrate’s order dated 25.4.2001 the police will not arrest the applicants without first obtaining the warrant of arrest from the Magistrate, if the arrest is considered necessary.

12. The complainant has an interest in the final outcome of investigation, but he does not have any vested interest in the arrest of the accused, therefore, it is not necessary to hear the complainant before passing this order. With the above directions, this application is disposed of.