DEENAN Vs. JAYALALITHA

JUDGEMENT

(1.) The petitioner, Deenan, has filed this application under Section 482, read with Sections 41 and 43 of the Criminal Procedure Code, to direct the arrest of the first respondent, Miss. Jayalalitha, by the second respondent, the Commissioner of Police, Madras, in respect of a crime said to have been registered on the first information lodged by one M.S. Sridhran of Theni and who is a member of .the All Indian Anna Dravida Munnetta Kazhagam Party.

(2.) Mr. S. Kanagasabai, the learned Counsel appearing for the petitioner, contends that every: citizen in equal before law especially under criminal jurisprudence, whatever may be the status of the person involved and there can be no privilege from arrest when a case is registered under the Indian Penal Code, and the offence is cognizable. The learned Counsel would refer to the provisions of Sections 41 and 157 of the Criminal Procedure Code, to substantiate his submission that the police have no choice but to arrest when a first information report is registered as a crime for a cognizable offence. According to the learned Counsel, Section 23 of the Madras City Police Act, casts a duty on the police not only to detect offences but to bring offenders to justice and this duty correlated with the power necessarily implies that arrest was mandatory. He would contend that if such an interpretation were not to be given, the very object of the Criminal Procedure Code relating to arrest will be defeated. In the course of his arguments he referred to Craies on Statute Law V Edition, at Page 263, to substantiate his proposition about obligatory and permissive acts which couple the power with a duty. He also referred to An Introduction to the Study of the Law of the Constitution by A.V. Dicey, and referring to Page 202 thereof he would contend that the 6 rule of law, in the sense of equality before law excludes the idea of any exemption of officials or others from the duty of obedience to law, which governs other citizens or from the jurisdiction of the ordinary tribunals.

(3.) I have carefully considered the submission of the learned Counsel for the petitioner. The words my arrest in Section 41 of the Criminal Procedure Code, show that the power of arrest is discretionary. A police officer is not always bound to arrest for cognizable offences. The reference to Statute Law by Craies, confirms my view with particular reference to the following passage: Prim facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative. I do not find any thing else in the Code of Criminal Procedure or the Madras City Police Act to hold that this power of the Police cannot be discretionary. Reference to Section 43 of the Criminal Procedure Code: relating to arrest by a private person and procedure on such arrest, does not loom large for consideration in this petition. Further, the authorised power of arrest of an offender by a private person is restricted to cases of commission of non-bailable and cognizable offences in his presence and to the case of proclaimed offender and not otherwise. The Legislature did not intend to give a private person authority to arrest all offender, if upon information received or, from other circumstances appearing before him, he is merely of the opinion that an offence has been committed. If an information relating to a cognizable offence is brought to the notice of the police officer, though he has the power to arrest, he can still refrain from arresting persons, depending upon the nature of the offence and the circumstances unfurled not only in the complaint but also during the course of investigation. This section, of course, gives wide powers to the Police Officer to make an arrest and, naturally, it is necessary while exercising such large powers to be cautious and circumspect.