(i) Whether the police have to approach the learned Magistrate and take orders from him before arresting the accused against whom FIR is registered pursuant to the orders issued by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, 1973?
Ans. It is neither obligatory nor mandatory for a Police Officer to obtain the leave of the Court before arresting an accused against whom FIR is registered in pursuance of the order passed by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, 1973. Certainly, we would hasten to add that exercise of discretion by the arresting officer should be exercised with greater sensitivity and in accordance with the settled canon of criminal jurisprudence, while keeping the facts and circumstances of each case in mind. It needs to be remembered by the Investigating agencies that order under Section 156(3) may be passed by the Court as a result of failure to perform its duty on the part of the investigating agencies.
(ii) Whether the police can exercise the powers of arrest under Section 41 of the Criminal Procedure Code, 1973, without intervention of the Court?
Ans. A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. In fact, answer to this question is squarely provided in the judgment of the Supreme Court in M.C. Abraham (supra).
Bombay High Court
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