Case Note & Summary
The petitioner, Sachin Hindurao Waze, a police officer, was arrested by the NIA on 13 March 2021 in connection with three interconnected incidents: theft of a Mahindra Scorpio vehicle, recovery of an explosive-laden Scorpio near an industrialist's residence, and the murder of Mansukh Hiren. The petitioner was the investigating officer in the initial stages of these cases. He filed a habeas corpus petition alleging illegal detention on multiple grounds. The court examined the submissions: (1) violation of Section 45 CrPC for lack of state consent before arrest; (2) first remand by Special Judge instead of a Magistrate; (3) no remand order under Section 309 CrPC after charge-sheet filing on 03.09.2021 until cognizance on 07.09.2021; and (4) absence of a signed warrant of remand. The court held that Section 45 CrPC was not attracted as the alleged acts were not in discharge of official duty. The Special Judge under the NIA Act has powers of a Magistrate under Section 167 CrPC, so the first remand was valid. The detention between 03.09.2021 and 07.09.2021 was not illegal because the remand under Section 167 CrPC continued until cognizance, and the order taking cognizance on 07.09.2021 implied a remand under Section 309 CrPC. The court also held that a separate signed warrant is not mandatory when the court's order is recorded. The petition was dismissed, and the detention was held to be legal.
Headnote
A) Criminal Procedure - Arrest of Police Officer - Section 45 CrPC - Consent of State Government - The petitioner, a police officer, was arrested for alleged criminal acts during investigation. The court held that Section 45 CrPC does not apply as the acts were not in discharge of official duty but were part of the alleged offence itself. Therefore, no prior consent was required. (Paras 10-15)
B) Criminal Procedure - First Remand - Section 167 CrPC - Special Judge - The petitioner was produced before the Special Judge for first remand. The court held that under the NIA Act, the Special Judge has the powers of a Magistrate under Section 167 CrPC, and thus the first remand was valid. (Paras 16-20)
C) Criminal Procedure - Remand after Charge-sheet - Section 309 CrPC - The charge-sheet was filed on 03.09.2021, and cognizance was taken on 07.09.2021. The court held that the petitioner's detention during this period was not illegal as the remand under Section 167 CrPC continued until cognizance, and thereafter the court's order taking cognizance and adjourning the matter constituted a valid remand under Section 309 CrPC. (Paras 21-30)
D) Criminal Procedure - Warrant of Remand - Section 309 CrPC - The petitioner argued that no signed warrant of remand was issued. The court held that the order of the court taking cognizance and adjourning the matter, recorded in the proceedings, is sufficient and a separate warrant is not mandatory. (Paras 31-35)
Issue of Consideration
Whether the detention of the petitioner is illegal due to (i) non-compliance with Section 45 CrPC, (ii) first remand by Special Judge instead of Magistrate, (iii) absence of remand order under Section 309 CrPC after filing of charge-sheet, and (iv) lack of a signed warrant of remand.
Final Decision
The Bombay High Court dismissed the writ petition, holding that the detention of the petitioner was legal. The court found no violation of Section 45 CrPC, the first remand by the Special Judge was valid, the detention between charge-sheet and cognizance was not illegal, and the absence of a separate signed warrant did not invalidate the remand.
Law Points
- Section 45 CrPC does not require prior consent for arrest of a police officer when the acts are not in discharge of official duty
- Section 167 CrPC remand by Special Judge is valid for NIA cases
- Section 309 CrPC remand does not require a separate warrant if the court takes cognizance and adjourns
- Habeas corpus not maintainable when detention is under valid judicial orders
Case Details
2025 LawText (BOM) (3) 61
Criminal Writ Petition No. 2485 of 2024
Sarang V. Kotwal, S. M. Modak
Mr. Rounak Naik a/w. Ms. Sajal Yadav, Ms. Aayushya Genuja, Harsh Ghangurde, Ms. Dakshata Dupare and Nihal Rebello for Petitioner. Mr. Sandesh D. Patil a/w. Chintan Shah, Prithviraj Gole, Krishnakant Deshmukh, Anusha Amin and Ms. Divya Pawar for Respondent No.1/NIA. Mr. J. P. Yagnik, APP for State/Respondent. Mr. Nitin Pawar and Mr. Akhilesh Singh, NIA present.
Union of India, Through the S.P. The National Investigation Agency & Anr.
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Nature of Litigation
Criminal writ petition seeking a writ of habeas corpus alleging illegal detention.
Remedy Sought
Petitioner sought his release forthwith from alleged illegal detention.
Filing Reason
Petitioner claimed his arrest and continued detention were illegal due to non-compliance with Section 45 CrPC, improper first remand, lack of remand under Section 309 CrPC after charge-sheet, and absence of a signed warrant of remand.
Previous Decisions
The petitioner's application at Exhibit-3 claiming illegal arrest was rejected by the Special Judge on 16.03.2021. The charge-sheet was filed on 03.09.2021 and cognizance was taken on 07.09.2021.
Issues
Whether the arrest of the petitioner was illegal for want of consent under Section 45 CrPC?
Whether the first remand by the Special Judge was valid under Section 167 CrPC?
Whether the petitioner's detention between 03.09.2021 and 07.09.2021 was illegal for want of a remand order under Section 309 CrPC?
Whether the absence of a signed warrant of remand under Section 309 CrPC renders the detention illegal?
Submissions/Arguments
Petitioner argued that Section 45 CrPC requires prior consent of State Government before arresting a police officer for acts done in discharge of official duty, and no such consent was obtained.
Petitioner argued that the first remand should have been obtained from a Magistrate, not a Special Judge.
Petitioner argued that after filing of charge-sheet on 03.09.2021, no remand order under Section 309 CrPC was passed until cognizance on 07.09.2021, making detention illegal.
Petitioner argued that no signed warrant of remand under Section 309 CrPC was issued, relying on Ram Narayan Singh and Dilip Pandurang Kamath.
Respondent/NIA argued that Section 45 CrPC does not apply as the acts were not in discharge of official duty, the Special Judge has powers under Section 167 CrPC, and the detention was under valid judicial orders.
Ratio Decidendi
Section 45 CrPC does not protect a police officer from arrest when the alleged acts are not in discharge of official duty but constitute the offence itself. The Special Judge under the NIA Act has the powers of a Magistrate under Section 167 CrPC for remand. After filing of charge-sheet, the remand under Section 167 CrPC continues until cognizance, and the order taking cognizance and adjourning the matter constitutes a valid remand under Section 309 CrPC. A separate signed warrant is not mandatory if the court's order is recorded.
Judgment Excerpts
Section 45 of the Cr.p.c. is contravened. No consent of the State Government was taken before arresting the Petitioner.
The first remand should have been obtained by the Investigating Agency from a Magistrate. Learned Special Judge was not empowered to remand the Petitioner at the first instance when he was arrested.
The charge-sheet was filed on 03.09.2021 and, therefore, power to remand before filing of the charge-sheet U/s.167 of the Cr.p.c. came to end on 03.09.2021.
The warrant of remand U/s.309 of the Cr.p.c. was required to be sent by the learned Special Judge under his own signature.
Procedural History
The petitioner was arrested by NIA on 13.03.2021 and produced before the Special Judge on 14.03.2021, who granted police custody for 10 days. On 14.03.2021, the petitioner filed an application claiming illegal arrest, which was rejected on 16.03.2021. Remand was extended on 25.03.2021 up to 03.04.2021. On 09.04.2021, he was remanded to judicial custody. On 09.06.2021, extension of 60 days was granted under UAPA, further extended by 30 days on 05.08.2021. Charge-sheet was filed on 03.09.2021. On 07.09.2021, the case was transferred to another judge who took cognizance. The petitioner filed the present habeas corpus petition.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 45, 167, 309, 174
- Unlawful Activities (Prevention) Act, 1967 (UAPA): 16, 18
- Indian Penal Code, 1860 (IPC): 286, 302, 379, 465, 473, 506(2), 120B, 201, 34
- Explosive Substances Act: 4(a)(b)(i)
- National Investigation Agency Act, 2008 (NIA Act):
