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2013 DIGILAW 1194 (JHR)

Kamal Kumar Singhania v. State of Jharkhand

2013-10-31

R.R.PRASAD

body2013
ORDER 1. Learned counsel appearing for the petitioners is permitted to removed the defects in course of the day. 2. Heard learned counsel appearing for the petitioners, learned counsel appearing for the State and learned counsel appearing for the informant. 3. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submits that though these petitioners have filed this application for quashing of the first information report of Kotwali (Sadar) P.S. Case No. 953 of 2013 (G.R. No. 5876 of 2013) dated 24.10.2013. registered under Sections 341/342/323/307/353/34 of the Indian Penal Code and also for quashing of the order dated 26.10.2013, passed by learned Chief Judicial Magistrate, Ranchi whereby warrant of arrest has been ordered to be issued against these petitioners, but these petitioners would confine their prayer with respect to quashing of the order dated 26.10.2013 only. 4. Learned counsel appearing for the petitioners submits that as per the case of the prosecution, Income Tax Authority visited the business premises of these petitioners on 24.10.2013 for making survey. During that course, on account of some reason, a scuffle took place in between the persons, who had come for making survey, and these petitioners, but that has been aggravated to the extent that these petitioners did assault them with a view to kill them. In spite of that, survey continued till next morning i.e. on 25.10.2013. In the morning i.e. on 25.10.2013, the statement of the petitioner No.1 was recorded at 6.15 a.m. In spite of that, the Investigating Officer submitted a requisition in 25.10.2013 for issuance of warrant of arrest, on the ground that these petitioners are accused in a cognizable offence and there is sufficient materials showing their involvement and that they have gone underground as they have absconded. On such requisition, warrant of arrest was ordered to be issued vide order dated 26.10.2013. That order has been challenged. 5. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submits that the survey was made on 24.10.2013 which continued till the morning of 25.10.2013 during which, these petitioners were present with the Income Tax Officials. On such requisition, warrant of arrest was ordered to be issued vide order dated 26.10.2013. That order has been challenged. 5. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submits that the survey was made on 24.10.2013 which continued till the morning of 25.10.2013 during which, these petitioners were present with the Income Tax Officials. Sometimes, in the afternoon, a requisition has been filed wherein it has been shown that these petitioners have absconded, which proposition would be too much to accept as within 6 or 7 hours, how one can be said to have absconded and hence, the Court should not have issued warrant of arrest against these petitioners in that particular fact, and thereby, the Court has committed illegality in passing order with respect to warrant of arrest against these petitioners. 6. Mr. A.K. Kashyap, learned senior counsel appearing for the informant submits that the Court, by passing order of warrant of arrest, has not committed any illegality, as the order has been passed inconsonance of the provision as contained in Section 73, Cr PC. In this regard, it was submitted that in the requisition, it has been clearly stated that these petitioners have absconded and only in that event, the warrant of arrest has been ordered to be issued and, thereby, the impugned order never suffers from any illegality, as the allegation made in the first information report, does disclose that these petitioners have committed cognizable offence. 7. There is no dispute in the proposition of law that the police or the investigating agency does have power to arrest a person even in absence of warrant of arrest in a cognizable case but that power is subscribed by the conditions mentioned under Section 41, Cr PC. So far as the matter relating to issuance of warrant of arrest is concerned, that power the Magistrate does derive from the provision as contained in Section 73, Cr PC 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. 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 of 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 be nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71." 8. From bare perusal of that aforesaid section, it is manifest that it confers a power upon tile Magistrate to issue warrant for arrest of three classes of person, namely, escaped convict (ii) a proclaimed offender and (iii) a person who is accused of a non-bailable offence and is evading arrest. 9. Here in the instant case, non-bailable warrant of arrest has been issued on the premise that the petitioners have absconded as reported under the requisition, but the question does arise as to whether, in the facts and circumstances of the case, these petitioners can be said to have absconded. 10. Admittedly, the Officials of the Income Tax did arrive on the business premises of these petitioners on 24.10.2013. On that day, some kind of occurrence seems to have been taken place at the business premises of these petitioners, for which, the instant first information report was lodged at 6.30 p.m. on 24.10.2013. Further, it has also been admitted that the survey got continued till next morning i.e. on 25.10.2013 and in the morning, the Income Tax Officials have also recorded statement of the petitioner No.1. In such situation, how a person can be said to have absconded. 11. In that view of the matter, requisition submitted by the Investigating Officer declaring the petitioners to be absconded is wrong and as such, the Court acting upon such requisition, seems to have committed wrong in passing order for issuance of warrant of arrest against these petitioners. 12. In such situation, how a person can be said to have absconded. 11. In that view of the matter, requisition submitted by the Investigating Officer declaring the petitioners to be absconded is wrong and as such, the Court acting upon such requisition, seems to have committed wrong in passing order for issuance of warrant of arrest against these petitioners. 12. Accordingly, the order dated 26.10.2013 under which warrant of arrest has been ordered to be issued, is hereby, quashed. 13. In the stands allowed result, this application. Application allowed.