Case Note & Summary
The petitioners, 20 women hawkers from various parts of Maharashtra, filed a Criminal Writ Petition before the Bombay High Court seeking quashing of an FIR registered against them under Section 33 of the Bombay Police Act, 1951, for hawking without a license. They also sought a declaration that their arrest and detention were illegal. The petitioners were arrested on 28th August 2018 by the Deonar Police Station, Mumbai, while they were selling flowers, balloons, and other items near a temple. They were produced before the Magistrate and remanded to judicial custody. The petitioners contended that the offence under Section 33 of the Bombay Police Act is non-cognizable and bailable, and that their arrest without prior sanction of the Commissioner of Police under Section 37(1A) of the Act was illegal. They also argued that the police did not follow the procedure under Section 41 CrPC, which requires issuance of notice before arrest for non-cognizable offences. The State opposed the petition, arguing that the arrest was lawful and that the petitioners were habitual offenders. The High Court examined the provisions of the Bombay Police Act and CrPC. It held that Section 33 of the Bombay Police Act does not make hawking without license a cognizable offence, and therefore, the police could not arrest without warrant. Further, Section 37(1A) of the Act mandates that no woman shall be arrested for a non-cognizable offence under the Act without prior sanction of the Commissioner of Police. Since no such sanction was obtained, the arrest was illegal. The Court also noted that the police failed to issue notice under Section 41 CrPC before arrest. The Court quashed the FIR and all proceedings arising therefrom, and directed the release of the petitioners forthwith. The Court also emphasized that hawking is a fundamental right to livelihood under Article 21 of the Constitution, and that the police must act within the bounds of law.
Headnote
A) Criminal Procedure - Arrest of Women - Section 37(1A) Bombay Police Act, 1951 - Prior Sanction - Arrest of women for non-cognizable offences under the Act requires prior sanction of the Commissioner of Police - Held that arrest of petitioners without such sanction is illegal and violative of their rights (Paras 10-12). B) Criminal Procedure - Cognizable Offence - Section 33 Bombay Police Act, 1951 - Hawking without license is not a cognizable offence under the Act - Held that police cannot arrest without warrant for such offence (Para 9). C) Constitutional Law - Right to Livelihood - Article 21 of Constitution of India - Hawking is a fundamental right to livelihood - Held that arrest of hawkers without following procedure infringes their right to livelihood (Para 13). D) Criminal Procedure - Notice before Arrest - Section 41 CrPC - For non-cognizable offences, police must issue notice before arrest - Held that failure to issue notice renders arrest illegal (Para 14).
Issue of Consideration
Whether the arrest of women hawkers without a license under Section 33 of the Bombay Police Act, 1951, without prior sanction under Section 37(1A) of the Act, and without following the procedure under Section 41 CrPC, is illegal and violative of fundamental rights.
Final Decision
The Court allowed the writ petition, quashed the FIR and all proceedings arising therefrom, and directed the release of the petitioners forthwith.
Law Points
- Hawking without license is not a cognizable offence under Section 33 of Bombay Police Act
- 1951
- Section 37(1A) requires prior sanction of Commissioner for arrest of women for non-cognizable offences
- Article 21 of Constitution protects right to livelihood
- Article 14 prohibits arbitrary arrest
- Section 41 CrPC requires notice before arrest for non-cognizable offences
