HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 10700 OF 2011 . DATED ……….JULY, 2011 BETWEEN Avula Yadagiri Reddy and anr …Petitioners And State of Andhra Pradesh, Rep. by Superintendent of Police, Nizamabad District, Nizamabad and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 10700 of 2011 ORDER: A case in crime No. 72 of 2011 was registered against the petitioners on 20.03.2011 on the file of the Station House Officer, IV Police Station, Nizambad, for the offence punishable under Section 498-A IPC. Pursuant to the registration of the said case, the second respondent issued notice dated 24.03.2011 under Section 41-A of Cr.P.C directing the petitioners to appear before him on 24.03.2011. The petitioners appeared before the second respondent on the said date. Again, notice dated 30.03.2011 under Section 41-A of Cr.P.C. was issued to the petitioners directing them to deposit their passports within two days and in turn depositing the same before the Court, for the purpose of investigation. Questioning the said notice, the present Writ Petition is filed. Sri G.Vidya Sagar, the learned Counsel for the petitioners primarily contends that the second respondent has no power or authority to require the petitioners to surrender their passports for depositing the same before the Court. He further submits that even Section 41-A of Cr.P.C., does not confer any power or authority on the second respondent for withholding of the passports and in turn to place them before the Court, without there being any order or direction from the Court. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection [See M.C. Abraham v. State of Maharashtra,(2003) 2 SCC 649]. It may be noticed that in the case on hand the petitioners have not yet been arrested and the case is still under investigation although the alleged offence is a cognizable. During the course of investigation, on the basis of a petition lodged by the complainant the investigating officer has issued a notice under Section 41-A of the Code of Criminal Procedure directing the petitioners to surrender their passports to him so as to in turn deposit the same before the Court. This action on the part of the investigation officer is only to secure the presence of the petitioner and complete the investigation of the case as early as possible. Ex facie, the impugned notice does not cause any loss or harm to the petitioners. Investigation is the prerogative of the police and this Court cannot direct the police to conduct and complete investigation in a particular fashion and it is for the police to do the needful in accordance with law. However, as has been complained by the complainant, if the petitioners plan to leave India in the midst of the ongoing investigation, it will be difficult for the investigating officer to complete the investigation in the case. If for any reason, the petitioners are really intended to leave India and for that purpose they require their passports, they are at liberty to file a petition before the Court concerned in that regard, in which event it is for that Court to consider and dispose of the same in accordance with law. For the foregoing reasons, I do not find any merit in the writ petition which is liable to be dismissed. The Writ Petition is accordingly dismissed. No order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated ------July, 2011. Msnro