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2013 DIGILAW 1122 (JHR)

Anil Goel @ Anil Jain v. State of Jharkhand

2013-09-26

R.R.PRASAD

body2013
ORDER 1. Heard the parties. 2. This application has been filed for quashing of the order dated 20.6.2013, passed by the Judicial Magistrate, Hazaribagh in Gola P.S. Case No. 22 of 2007, whereby and whereunder, learned Magistrate has passed an order on the requisition of the investigating officer for reinvestigation of the case, so far this petitioner and other accused persons are concerned, and by the same order warrant of arrest (non-bailable) has been ordered to be issued against the petitioner. 3. Learned counsel appearing for the petitioner confines his prayer of later part of the order dated 20.6.2013, whereby non-bailable warrant of arrest has been ordered to be issued. 4. Mr. Kalyan Roy, learned counsel appearing for the petitioner, submits that later part of the order dated 20.6.2013 has never been passed in consonance with the provision, as contained in Section 73 of the Code of Criminal Procedure, as none of the conditions gets fulfilled. In that event, the order, under which warrant of arrest has been ordered to be issued, is fit to be quashed. 5. I do find substance in the submission advanced on behalf of the petitioner. 6. In the context of the submission, I may refer to the provision of Section 73 of the Code of Criminal Procedure, which reads as follows:- "73. Warrant may be directed to any person – (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of• any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence, and is evading arrest. (2) Such person shall acknowledge in writing the receipt for the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken wider Section 71." 7. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken wider Section 71." 7. From perusal of the section, it is manifest that it confers a power upon the Magistrate to issue warrant of arrest of three classes of persons, namely, (i) escaped convict (ii) a proclaimed offender and (iii) a person who is accused of a non-bailable offence and is evading arrest. 8. Their Lordships in a case of State through CBI vs. Dawood Ibrahim Kaskar, 1997 (2) East Cr C 124 (SC): AIR 1997 SC 2494 having taken into consideration the aforesaid provision as enshrined under Section 73 of the Code of Criminal Procedure and also recommendation of the Law commission in its 41st report did observe in paragraph 20 of the said judgment as under:- "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 the cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, [Like Section 466 or 467 (part-1) 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 evade the arrest, the only course left open to the Investigating Officer to ensure 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 bf a non-bailable offence and is evading arrest." 9. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73 for the person to be apprehended is accused bf a non-bailable offence and is evading arrest." 9. Consequently, it was held that Section 73 of the Code is of general application and that in course of investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of non-bailable offence and is evading arrest. 10. While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation. 11. Here in the instant case, none of the conditions, as enshrined in Section 73(1) of the Code of Criminal Procedure, seems to have been fulfilled, as the investigating officer sought issuance for warrant of arrest on the ground that certain materials have been collected against the petitioner, which has never been a pre-condition, for issuance of warrant of arrest. 12. Accordingly, that part of the order dated 20.6.2013, under which warrant of arrest has been ordered to be issued against the petitioner, never seems to have been passed in accordance with law and hence it is hereby set aside. 13. Thus, this application stands disposed of. Application disposed of.