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Sharifbai Mehmoob Vs. Abdul Razak - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 2037 of 1959
Judge
Reported inAIR1961Bom42; 1961BomCR(Cri)42; (1960)62BOMLR816; 1961CriLJ228; ILR1960Bom938
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 167; Bombay Police Act - Sections 161, 161(1), 202 and 203
AppellantSharifbai Mehmoob
RespondentAbdul Razak
Advocates:Sharad Manohar, Adv.;M.A. Rane, Asst. Govt. Pleader
Excerpt:
.....by high court even in cases relating to admissions. - after receiving the police report, the learned magistrate dismissed the complaint as it was not filed within six months of the act complained of, as required by section 161(1) of the bombay police act. august, 1958, and continued upto 6th august, 1938, that the detention was wrongful at every moment of such detention, and that the complaint filed by his client on 5-2-1959, was, therefore, within six months of the date of the act complained of, that is to say, within six months from 6th of august, 1958 on which data she was last detained by p. in that view of the law, the complainant in this case could complain of a wrongful act on the part of p. in so far as, however, the complaint was filed in this case on 5-2-1939, a few days..........on 6th august, 1958, as there was no sufficient evidence against her. the complainant then filed a complaint in the court of the judicial magistrate, anti-corruption, at poona, against p.s.i. khan on 5-2-1959 alleging that her arrest and detention from 2-8-1958 upto 6-8-1958 was mala fide and unlawful. the learned judicial magistrate referred that complaint to the police under section 202 of the criminal procedure code. after receiving the police report, the learned magistrate dismissed the complaint as it was not filed within six months of the act complained of, as required by section 161(1) of the bombay police act.3. against that order the complainant filed a revision application in the sessions court at poona. the learned additional sessions judge, after hearing the.....
Judgment:
ORDER

1. This application has been filed by the complainant against the order passed by the learned Additional Sessions Judge, Poona, confirming the order passed by the learned Judicial Magistrate, Anti-corruption, Poona, dismissing the com plaint under Section 203 read with Section 161 of the Bombay Police Act.

2. The case for the prosecution was that P.S.I. Khan of the Bund Garden Police Station received a complaint of theft on 9-7-1958 from one Mohamed Nathu Mistry. During the investigation of that offence P.S.I. Khan arrested the complainant on 2nd August, 1958, but she was ultimately released on 6th August, 1958, as there was no sufficient evidence against her. The complainant then filed a complaint in the Court of the Judicial Magistrate, Anti-corruption, at Poona, against P.S.I. Khan on 5-2-1959 alleging that her arrest and detention from 2-8-1958 upto 6-8-1958 was mala fide and unlawful. The learned Judicial Magistrate referred that complaint to the police under Section 202 of the Criminal Procedure Code. After receiving the police report, the learned Magistrate dismissed the complaint as it was not filed within six months of the act complained of, as required by Section 161(1) of the Bombay Police Act.

3. Against that order the complainant filed a revision application in the Sessions Court at Poona. The learned Additional Sessions Judge, after hearing the arguments, agreed with the conclusion reached by the learned Magistrate that the complaint was barred under Section 161 of the Bombay Police Act, inasmuch as it was filed on 5-2-1959, i.e. more than six months after the alleged wrongful detention by P.S.I. Khan and dismissed the application. It is against this order of the learned Additional Sessions Judge, that the present revision application has been filed by the complainant.

4. It was contended by the learned advocate for the complainant that the wrongful detention in this case started on 2nd. August, 1958, and continued upto 6th August, 1938, that the detention was wrongful at every moment of such detention, and that the complaint filed by his client on 5-2-1959, was, therefore, within six months of the date of the act complained of, that is to say, within six months from 6th of August, 1958 on which data she was last detained by P. S. I. Khan and released. Mr. Rane, the learned Assistant Government Pleader, on the other hand, contended that the detention by P.S.I. Khan, even if wrongful, as alleged by the complainant, started on the date of the arrest of the complainant, namely, 2nd August, 1958 and ended on the very next day when the complainant was produced before the Magistrate for remand. He urged that on 3rd August, 1958, P.S.I. Khan applied for remand before the learned Magistrate for seven days on the ground that the investigation of the offence had not been completed, that the learned Magistrate granted a remand only for one day and that, by reason of the order of the teamed Magistrate granting the remand, the detention by P.S.I. Khan ceased and the complainant was further detained in the police custody under the order of the learned Magistrate. Accordingly, he submitted, the complaint filed by the complainant on 5-2-1959 was three days late and, therefore, it was barred by limitation under Section 161 of the Bombay Police Act.

5. In my opinion, the contention raised by Mr. Rane, should be accepted. It is true that P.S.I. Khan arrested the complainant on 2nd August, 1958 and continued to keep her in police custody up to 6th August, 1958, but it must be noted that although he had power under the Criminal Procedure Code to arrest any person suspected of having committed an offence without a warrant, he could not detain that person in police custody for more than 24 hours. The provisions of the Criminal Procedure Code, expressly require a police officer to produce the person whom he has arrested for commission of a cognizable offence before the Magistrate within 24 hours. If he fails to do it, he will be certainly guilty of wrongful detention of the person whom he has arrested. But once he produces the arrested person before the Magistrate within 24 hours as required by law and the Magistrate after applying his mind to the application for remand, made by the police officer grants the application and extends the period of detention either for the full period applied for, or for any lesser time, the detention of the arrested person after the order of the remand made by the Magistrate would in my opinion, no longer be the detention by the police officer himself on his own. He would be merely carrying out the orders of the Magistrate and the detention would be, in fact and in law, the detention under the Orders of the Magistrate. In that view of the law, the complainant in this case could complain of a wrongful act on the part of P.S.I. Khan consisting of a wrongful arrest and detention as having occurred on 2nd August, 1958 and continued upto 3rd at the most. The complaint against him, therefore, should have been filed within six months of the latter date. In so far as, however, the complaint was filed in this case on 5-2-1939, a few days more than the period of six months allowed by Section 161 of the Bombay Police Act, the Complaint was clearly barred. Accordingly, the view of the learned Magistrate as welt as the learned Additional Sessions Judge, on this point seems to be right, and there is no reason for me to interfere with the orders that they have passed. The application is, therefore, dismissed and the Rule is discharged.

6. Rule discharged.


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