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2008 DIGILAW 896 (DEL)

Mrigendra Jalan v. State

2008-09-19

KAILASH GAMBHIR

body2008
KAILASH GAMBHIR, J. Oral: By way of this petition under Section 482 Cr.P.C. the petitioner seeks quashing of the orders dated 7.2.2008 and 4.4.2008 whereby the learned Metropolitan Magistrate issued Non-bailable warrants and also commenced the proceedings under Section 82 Cr.P.C. against the petitioner. Counsel appearing for the petitioner submits that the court has yet to take the cognizance of the said offence and the matter is still at the investigation stage. Counsel for the petitioner has drawn my attention to the ordersheet dated 3.5.2008 and 16.7.2008 to contend that the said orders would show that the matter is still at the stage of investigation. Contention of the counsel for the petitioner is that the respondent had filed a complaint under Section 156 (3) Cr.P.C. on which the learned Metropolitan Magistrate has directed registration of an FIR and pursuant thereto the matter was still pending at the stage of investigation. Counsel thus urged that at the stage of investigation, the Magistrate has no role to pass any order including that of directing NBWs or proceedings under Section 82 Cr.P.C. unless the Magistrate has taken a prima facie view that the offence as alleged in the complaint has been committed by the petitioner. Counsel for the petitioner has placed reliance on a judgment of the Apex Court reported in (2000) 10 SCC 438 entitled State through CBI Vs. Dawood Ibrahim Kaskar and others. Counsel for the petitioner has invited my attention to paras 18 and 24 of the said judgment to contend that it is only after the culmination of the investigation that the role of the Magistrate would start and not prior thereto. The contention of the petitioner is that at this stage of investigation the Magistrate has no power to direct the arrest of the petitioner or issue NBWs in the aid of investigation and at that stage the remedy lies with the police under Section 41 of the Cr.P.C. Refuting the said submissions made by the counsel for the petitioner Mr. Pawan Sharma, APP for the state avers that complete mechanism right from Section 73 to Section 83 has been provided in the Criminal Procedure Code and the Magistrate concerned is fully empowered to secure the presence of the accused who is avoiding his arrest. Learned Addl. P.P. has also placed reliance on the same judgment especially para 22 of the same. Learned Addl. P.P. has also placed reliance on the same judgment especially para 22 of the same. He has also placed reliance on the Division Bench judgment reported in 75 (1998) DLT 97 (DB) entitled Ottavio Quattrocchi Vs. Central Bureau of Investigation. Mr. Sharma for the state also submits that the petitioner has earlier sought anticipatory bail, which was dismissed as withdrawn. However, this submission of the Addl. P.P. is disputed by the counsel for the petitioner. Counsel for the petitioner disputes the very filing of the application of anticipatory bail by the petitioner. Additional P.P. for the state further submits that the concerned Magistrate has taken a decision on the application moved by the police seeking NBWs against the petitioner after he evaded his arrest and after due satisfaction Magistrate passed the said order directing NBWs. Mr. Vijay Aggarwal who appears for respondent No.2 submits that Magistrate has role to play even during the investigation under Section 156 (3) Cr.P.C. and in support of his submissions he has placed reliance on the judgment in Sakiri Vasu Vs. State of U.P. and Ors. reported in 1007 AIOL 1861 Mr. Aggarwal further submits that prima facie view will be taken by the Magistrate at the time of taking the cognizance and not prior to it. I have heard learned counsel for the parties at considerable length and gone through the records. The controversy raised by the counsel for the petitioner has been answered by the Apex Court in the same judgment on which reliance has been placed by both the counsel for the parties. The ratio of the judgment of the Apex Court reported in State Through CBI Vs. Dawood Ibrahim Kaskar and Ors. (2000) 10 SCC 438 in not unmistakable terms goes against the proposition of law and the interpretation of the said judgment. The ratio of the judgment of the Apex Court reported in State Through CBI Vs. Dawood Ibrahim Kaskar and Ors. (2000) 10 SCC 438 in not unmistakable terms goes against the proposition of law and the interpretation of the said judgment. As canvassed by the counsel for the petitioner before this court the question in the said judgment of the Apex Court involved was that in what circumstances, the court can move the provisions of Section 73 of the Cr.P.C. 1973 and the said question had arisen when during the investigation being conducted by the CBI before the designated court for the issuance of non bailable warrants against some of the accused persons who were evading their arrest so as to escape from the clutches of law the designated court of CBI had rejected the application of the CBI seeking issuance of the non-bailable warrants against such an accused person and the said order of the designated court was under challenge before the Apex Court at the instance of the CBI. The stand of the CBI before the Apex Court was that under Section 73 of the Cr.P.C., the designated court was fully empowered to issue warrants of arrest and proclamation. In para 12 of the said judgment the Apex Court referred to the issue of controversy to be inserted by the Apex Court and the same is reproduced as under: “12. The moot question that now requires to be answered is whether a court can issue a warrant to apprehend a person during investigation for his production before police in aid of the Investigating Agency. While Mr Ashok Desai, the learned Attorney General who appeared on behalf of CBI, submitted that Section 73 coupled with Section 167 of the Code bestowed upon the Court such power, Mr Kapil Sibal, who appeared as amicus curiae (the respondents did not appear in spite of publication of notice in newspaper) submitted that the Court had no such power. To appreciate the steps of reasoning of the learned counsel for their respective stands it will be necessary to refer to the relevant provisions of the Code and TADA relating to issuance of processes.” It would also be worthwhile to refer to para 18 of the aforesaid judgment in which respective arguments were advanced by the counsel appearing for the CBI and also by the Amicus Curaie opposing the stand of the CBI. The answer to the said question whether the Magistrate can order warrants of arrest at the investigation stage has been answered by the Apex Court from para 21 to 24. The same are also reproduced as under: “21.That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this section a police officer can investigate into a non-cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, [like Sections 466 or 467 (Part I) of the Indian Penal Code] and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evades the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73, for the person to be apprehended is “accused of a non-bailable offence and is evading arrest”. 22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of Part C of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person “against whom a warrant has been issued by it”. In other words, unless the Court issues a warrant the provisions of Section” 82, and the other sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41. In other words, unless the Court issues a warrant the provisions of Section” 82, and the other sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of Part C of Chapter VI. [Section 8(3) in case the person is accused of an offence under TADA.] 23. Lastly, we may refer to Section 90, which appears in Part D of Chapter VI of the Code and expressly states that the provisions contained in the Chapter relating to a summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summons and every warrant of arrest issued under the Code. Therefore, when a Court issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter” VI. 24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section” 167 of the Code. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section” 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the courts solely for the production of the accused before the police in aid of investigation.” The Apex Court has answered the question in favour of the CBI by holding that Section 73 of the Cr.P.C. clearly gives power to the Magistrate to issue warrants of arrest at the stage of investigation where the police has failed to arrest the person in spite of best efforts made under Section 41 of the Cr.P.C. The said judgment of the Apex Court as referred above was relied upon by the Division Bench of this court in Ottaviio Quattrocchi Vs. CBI, 75 (1998) DLT 97 (DB). Para 44 of the aforesaid judgment would be relevant to throw light on this controversy and the same is referred as under: “The Supreme Court considered the question that whether a Court can issue a warrant to apprehend a person during investigation for his production before police in aid of the Investigating Agency. This question was answered by the Supreme Court holding that Section 73 of the Code confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also. It was further held that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest. It was further held that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest. On the question whether such issuance of warrant can be for his production before the police in aid of investigation, it was observed by the Supreme Court that a Magistrate plays, not frequently a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc.” With the said settled legal position, I do not find myself in agreement with the contentions raised by the counsel for the petitioner that the court before taking cognizance of the offence cannot come in the way of the investigation to direct issuance of non bailable warrants against the person who is accused of an offence and against whom already an FIR has been registered pursuant to the directions given by the court under Section 156 (3) of the Cr.P.C. There is no merit in the present petition. The same is dismissed.