The decision whether an individual should be arrested or not stays with the police, as per a full bench order of the Bombay High Court on Saturday.
The decision whether an individual should be arrested or not stays with the police, as per a full bench order of the Bombay High Court on Saturday.
In a petition questioning the power of the police to arrest a person in a private complaint like a regular FIR, Chief Justice Swatanter Kumar, Justice Ranjana Desai and Justice DB Bhosale ruled that the police need not seek directions from the magistrate while arresting a person in a private complaint filed with the magistrate.
Contrary to an order given by an earlier HC division bench passed last year, after the metropolitan magistrate had passed orders for registration of FIRs under Section 156(3) of the Criminal Procedure Code (CrPC), police could arrest the person only after seeking permission from the magistrate.
The bench had reasoned that the order would be in the interest of the innocent. It would protect them from arrest and also avoid arrests in civil cases. However, when the case came up before a different division bench in April, it was referred to a full bench.
The case pertained to city-based businessman Laxman Arya, against whom a private complaint was registered pursuant to directions of a metropolitan magistrate. The debate revolved around the question whether police could arrest Arya, as in any other case where a person is arrested if police find it necessary after an FIR is registered.
Relying on a Supreme Court judgment, the state government contended that the functions of the judiciary and the police were complimentary to each other and not overlapping.
“A combination of individual liberty with due observance of law and order is only to be obtained by leaving each to its own functions. The police have to investigate and arrest while the court comes into the picture only when the chargesheet is filed,” the judgment read.
The full bench therefore directed that while arresting a person against whom the FIR was filed under section 156 (3), following the provisions in the CrPC and the constitution, the power of arrest should be decided by the police strictly in accordance with law. The police have the power to arrest a person in an offence registered through a private complaint just as it does in case of a regular FIR.
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