The next submission which has been made by the learned Counsel appearing on behalf of the appellant is regarding the arrest of the accused and the manner in which the articles have been recovered at the instance of the accused under section 27 of the Evidence Act. It has been submitted that the accused were arrested on 3/11/2007 at about 11.30 A.M. and articles were seized at their instance by panchanama dated 3/11/2007 which was prepared at 7.30 A.M. It has been submitted that the said recovery, therefore could not be held to be recovery under section 27 of the Evidence Act since the accused were not arrested. The said submission, in our view, is without any substance. It has to be noted here that the the Panch witness P.W. 7 - Vijay Shirke in whose presence recovery has been made, has clearly stated that accused were taken in the jeep of the police alongwith PI Suryawanshi and the panchas and the accused went one by one to the respective homes of the accused and in the presence of panchas and Investigating Officer, showed the place where the said articles were hidden by them and they were thereafter seized and sealed (CONF-1/2012 WITH APEAL-632/2012) by them. It is a well settled position in law that for the purpose of arrest of the accused though, normally, arrest panchanama is made at the subsequent time, the moment the accused is in control and custody of the police, he is deemed to be arrested. Section 46 of the Criminal Procedure Code reads as under:-
"46. Arrest how made.- (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
[Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.] (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(CONF-1/2012 WITH APEAL-632/2012) (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] Keeping in view the aforesaid provision and taking into consideration the statements of the panch witness, it can be seen that the accused were in the custody of the police from 5.30 A.M. in the morning of 3/11/2011 and, therefore, though, formally, the arrest panchanama was made at 11.30 A.M., they were in the custody of the police since morning and the Investigating Officer has given an explanation by stating that the recovery was made at the instance of the accused earliest in order to ensure that the said articles are not removed by any one. The said explanation is a plausible explanation and the Investigating Officer clearly disclosed his presence of mind in immediately taking the accused to the (CONF-1/2012 WITH APEAL-632/2012) place where they had hidden the articles belonging to the deceased. The said submission, therefor, is without any merit and cannot be accepted.
Bombay High Court
State of Maharashtra vs Purushottam Dashrath Borate on 25 September, 2012
