JUDGMENT Learned counsel appearing for the petitioner in Cr. M.P. No. 744/2013, seeks permission to make necessary correction in para 11 and 20 and in the prayer portion of the petition. 2. Permission is accorded. 3. All these three applications arising out of the same impugned order were heard together and are being disposed of by this common order. 4. Heard learned counsel appearing for the petitioners and the learned counsel appearing for the Vigilance. 5. All these applications have been filed for quashing of the order dated 07/02/2013, passed by the learned Special Judge, Vigilance, Ranchi, in Vigilance P.S. Case No. 2/2011 (Special Case No. 2 of 2011), whereby and whereunder, nonbailable warrant of arrest was ordered to be issued against these petitioners. 6. Learned counsel appearing for the petitioners submits that the petitioners are the accused in Vigilance Case No. 2/2011, which has been lodged on the allegation that the accused persons including these petitioners in connivance with each other put Jharkhand State Electricity Board to heavy loss by making payment to the Contractor M/s Ramjee Power Construction Limited. During investigation when these petitioners were called by the Investigating Officer for interrogation they did respond to his call and put appearance before him on 24/03/2011. Thereafter, the petitioners were never called upon by the Investigating Officer for any interrogation. Suddenly, a requisition was filed by the Investigating Officer before the Court concerned, wherein it has been stated that an FIR has been lodged against the accused persons including these petitioners, wherein allegation has been made that the accused persons in connivance with each other, put Jharkhand State Electricity Board to heavy loss by making payment to the Contractor M/s Ramjee Power Construction Limited and, therefore, warrant of arrest be issued against the accused persons. On such requisition, an order was passed on 07/02/2013, whereby warrants of arrest were ordered to be issued against the petitioners. 7. Mr. On such requisition, an order was passed on 07/02/2013, whereby warrants of arrest were ordered to be issued against the petitioners. 7. Mr. R.S. Mazumdar, learned senior counsel and Indrajeet Sinha, learned counsel appearing for the petitioners submit that the impugned order, passed by the learned Court below never seems to be in consonance with the provision as contained in Section 73 Cr.P.C. as the warrant of arrest has been ordered to be issued only taking into account the fact placed by the I.O. that a case has been registered against them, which never fulfills the condition as stipulated under Section 73 Cr.P.C. warranting issuance of warrant of arrest and, thereby, the Court certainly committed illegality in passing the impugned order. Learned counsel by referring to a decision rendered in a case of “Raghuvansh Dewanchand Bhasin versus State of Maharashtra and Another [ (2012) 9 SCC 791 ]” submits that for maintaining rule of law and to keep the society functional in harmony, it is necessary for the Court to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other hand. Keeping in view the principle annunciated by the Hon'ble Supreme Court, the Court should not have issued the warrant of arrest on such requisition mechanically, rather the Court should have adhered to the provision as contained in Section 73 Cr.P.C. while issuing warrant of arrest against a person. Since the impugned order has been passed without fulfillment of the conditions as prescribed under Section 73 Cr.P.C., the impugned order suffers from illegality and is fit to be set aside. 8. As against this, Mr. Since the impugned order has been passed without fulfillment of the conditions as prescribed under Section 73 Cr.P.C., the impugned order suffers from illegality and is fit to be set aside. 8. As against this, Mr. Shailesh, learned counsel appearing for Vigilance submits that ample evidences have already been collected against the petitioners and, thereby, if the Court has issued warrant of arrest on the basis of the requisition submitted by the I.O., no illegality has been committed and that though statement has been made that the petitioners responded to the call of the I.O., but in absence of any in instruction he is not in a position to admit that fact, and that since this is the case where Jharkhand State Electricity Board has been put to a great loss by the accused persons including these petitioners, who in conspiracy with each other, made payment to the Contractor Ramjee Power Construction Limited in crores, impugned order never warrants to be quashed, and that the police does have power to arrest a person if he is an accused in a cognizable case. 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 Sections 41 Cr.P.C. So far as the matter relating to issuance of warrant of arrest is concerned, that never seems to have been issued in accordance with law. 9. In this context, 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 fo 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. (2) Such person shall acknowledge in writing the receipt fo 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 under Section 71. 10. From bare 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 nonbailable offence and is evading arrest. 11. Their Lordships in a case of “State through CBI v. Dawood Ibrahim Kaskar [1997 (2) East Cr. Case 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 he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation intoa non-cognizable and nonbailable offence, [like Section 466 or 467 (part1) 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. 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 of a nonbailable offence and is evading arrest.” 12. 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 nonbailable offence and is evading arrest. 13. While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation. 14. Thus, the question which is to be considered as to whether the learned Judge has issued warrant of arrest against the petitioner in consonance with the provision of Section 73 (1) of the Code of Criminal Procedure or not?” 15. There appears to be a purpose on the part of the legislature to have a legislation to that effect as in order to maintain rule of law and to keep the society functional in harmony, it is necessary for the Court to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other hand. 16. In this context, I may refer to a decision rendered in a case of “Raghuvansh Dewanchand Bhasin versus State of Maharashtra and Another [ (2012) 9 SCC 791 ]”, wherein their Lordships observed as follows: “10. It needs little emphasis that since the execution of a nonbailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case it is warranted. The courts have to be extra cautious and careful while directing issue of nonbailable warrant else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. The courts have to be extra cautious and careful while directing issue of nonbailable warrant else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society functional in harmony, it is necessary for the Court to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other hand. Indeed, it is a complex exercise. As Cardozo, J. puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” 11. Be that as it may, it is for the court, which is chothed with the discretion to determine whether the presence of an accused can be secured by a bailable or nonbailable warrant to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding.” 17. Coming to the fact of the case, it does appear that the court, on a requisition filed by the I.O. stating therein that the petitioners and other persons, who are accused in a case, in connivance with each other put Jharkhand State Electricity Board to heavy loss by making payment to the Contractor Ramjee Power Construction Limited, issued a warrant of arrest, which never appears to be in consonance with the provisions as contained in Section 73. It has never been reported to the Court that the accused persons are evading their arrest, rather it is otherwise as the statement has been made on behalf of the petitioners that whenever the petitioners were called upon by the I.O. for the purpose of interrogation, they did attend his call. Under the circumstances, the impugned order dated 07/02/2013 is hereby set aside. Consequently, the order dated 13/03/2013 under which process under Section 82 has been ordered to be issued against the petitioners, is also set aide as the same never appears to have been issued in accordance with law. 18. However, it goes without saying that the Investigating Officer would be at liberty to proceed with the matter relating to investigation, enquiry and trial in accordance with law.