JUDGMENT : Harsha Devani, J. Rule. Mr. R.C. Kodekar, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent in both the petitions. 2. Having regard to the facts of the case and with the consent of the learned counsel for the respective parties, the matters were taken up for final hearing. Since the reliefs prayed for in both the petitions are identical and the facts are also common, both the petitions were taken up for hearing together and are disposed of by this common judgment. 3. Both these petitions are directed against the order dated 28.10.2013 passed by the learned Chief Judicial Magistrate, Surat below the application dated 19.10.2013 submitted by the Assistant Commissioner of Police, “G” Division, Surat city, whereby warrant under section 70 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) has been ordered to be issued against the petitioners herein. 4. A first information being Jahangirpura Police Station, Surat I - C.R. No.31 of 2013 came to be lodged on 06.10.2013 against the petitioners herein alleging commission of the offences punishable under sections 376(2) (k) and (f), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2) and 120-B of the Indian Penal Code. It appears that immediately thereafter, on 9th October, 2013, the petitioner in Special Criminal Application No.3366 of 2013 (hereinafter referred to as “the first petitioner”) filed an application for quashing the said first information report before this court being Special Criminal Application No.3101 of 2013. The said petition came to be adjourned from time to time and in view of some deficiency in the said petition, the same came to be withdrawn with liberty to file a fresh petition. It appears that the first petitioner also filed an application under section 438 of the Code before the Sessions Court, at Surat being Criminal Miscellaneous Application No. 2595 of 2013 on 11.10.2013. In view of some objection taken to the affirmation of the said application, the same came to be withdrawn and subsequently, a fresh application came to be filed being Criminal Miscellaneous Application No. 2728 of 2013. According to the first petitioner, soon after the first information report came to be filed, he had been prompt and vigilant enough to have availed of all legal remedies available to him under law, which he had been pursuing right from 10.10.2013. According to the first petitioner, soon after the first information report came to be filed, he had been prompt and vigilant enough to have availed of all legal remedies available to him under law, which he had been pursuing right from 10.10.2013. In the meanwhile, on 21.10.2013, the Assistant Commissioner of Police, “G” Division, Surat City, filed an application before the learned Chief Judicial Magistrate, Surat, for issuance of a warrant in accordance with section 70 of the Code against the petitioner and other co-accused. By the impugned order dated 28.10.2013, the learned Chief Judicial Magistrate allowed the said application, which has given rise to the present petitions. 5. Mr. N.D. Nanavaty, Senior Advocate, learned counsel for the petitioners in each of the petitions drew the attention of the court to the facts of the case, to submit that the first information report came to be lodged on 06.10.2013, a quashing petition came to be preferred on 09.10.2013, and on 11.10.2013, an application for anticipatory bail came to be submitted. However, in the meanwhile, within a short time, in great haste, the investigating agency filed an application for issuance of warrant under section 73 of the Code on 19.10.2013. It was argued that if such action on the party of the investigating agency is permitted, whatever limited rights the accused has under section 438 of the Code would be frustrated. It was pointed out that on 28.10.2013, the application for anticipatory bail came to be withdrawn on account of certain deficiencies in the application and thereafter, a fresh application came to be filed on 30.10.2013. On 18.11.2013, a quashing petition came to be withdrawn, whereas the proclamation under section 82 of the Code came to be issued on 11.11.2013 on the basis of a warrant issued pursuant to the impugned order. It was submitted that the first petitioner was, during that time, availing of the statutory remedies available to him under law and as such, it cannot be said that the said petitioner was absconding so as to warrant issuance of warrant under section 70 of the Code. 5.1. It was submitted that the first petitioner was, during that time, availing of the statutory remedies available to him under law and as such, it cannot be said that the said petitioner was absconding so as to warrant issuance of warrant under section 70 of the Code. 5.1. The main plank of the submissions of the learned counsel for the petitioners was that a warrant cannot be issued under section 70 of the Code, for and in aid of investigation, as there are other ways for the investigating agency to arrest an accused, namely, section 41 of the Code etc. It was pointed out that section 73 of the Code empowers the learned Magistrate to issue a warrant under section 70 of the Code under the contingencies mentioned in sub-section (1) thereof. Thus, while exercising powers under section 73 of the Code, the Magistrate can issue a warrant only under the contingencies mentioned in sub-section (1) of section 70 of the Code and under no circumstances, can a warrant be issued for and in aid of investigation. Under the circumstances, the issuance of warrant under section 70 of the Code by the learned Chief Judicial Magistrate is contrary to the decision of the Supreme Court in the case of State Through Central Bureau of Investigation v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 , for the proposition that a warrant of arrest cannot be issued in exercise of powers under section 73 of the Code for production of an accused before the police in aid of investigation. Reliance was also placed upon an unreported decision of the Jharkhand High Court in the case of Abdul Manan Ansari v. State of Jharkhand, rendered on 1st May, 2013 in Criminal Miscellaneous Petition No. 897 of 2013, wherein the court set aside the warrant issued in exercise of powers under section 73 of the Code on the ground that the warrant of arrest cannot be issued only for helping and assisting the prosecution/police investigation. It was, accordingly, urged that the impugned order being contrary to the above decision of the Supreme Court, inasmuch as, the warrant under section 70 of the Code has been issued only in aid of investigation, the same cannot be sustained. 6. Vehemently opposing the petitions, Mr. It was, accordingly, urged that the impugned order being contrary to the above decision of the Supreme Court, inasmuch as, the warrant under section 70 of the Code has been issued only in aid of investigation, the same cannot be sustained. 6. Vehemently opposing the petitions, Mr. R.C. Kodekar, learned Additional Public Prosecutor raised a preliminary objection to the very maintainability of the petitions, by submitting that in view of the provisions of section 397 of the Code whereby the petitioners have an alternative efficacious remedy available by way of revision, the present petitions under Article 226 of the Constitution of India and section 482 of the Code, are not maintainable. In support of such submissions, the learned counsel placed reliance upon the decision of this court in the case of Ajendraprasad Narendraprasad Pandey v. State of Gujarat, 2006 (2) GLH 412 , wherein the court had held that an alternative and efficacious remedy was available to the petitioner therein under section 397 of the Code to approach the trial court which had issued the non-bailable warrant, to pray for cancellation of the non-bailable warrant issued against him. That an alternative and efficacious remedy was also available to the petitioner to challenge the order of issuance of the non-bailable warrant by way of filing a revision. In view of the fact that an alternative and efficacious remedy was available to the petitioner, the court held that the petition could not be entertained and was liable to be dismissed. It was submitted that therefore, on this ground alone, the petitions are required to be dismissed by relegating the petitioners to avail of the remedies available under section 397 of the Code. 6.1. It was submitted that the conduct of the accused is required to be seen by the court while considering the reliefs prayed for in the petitions. It was pointed out that even at this stage the petitioners do not say that they would appear before the investigating agency and that despite various notices having been issued to them, at different addresses, there is no response thereto. It was pointed out that the first petitioner had filed a false affidavit before the court while seeking anticipatory bail and his whereabouts were not known. Hence, to ascertain the whereabouts of the accused persons, the present course of action was required to be adopted. It was pointed out that the first petitioner had filed a false affidavit before the court while seeking anticipatory bail and his whereabouts were not known. Hence, to ascertain the whereabouts of the accused persons, the present course of action was required to be adopted. Referring to the warrant issued under section 70 of the Code, it was pointed out that the same does not state that the accused are required to be produced before the Investigating Officer and hence, even if the Investigating Officer arrests them, the accused will have to be produced before the learned Magistrate. Reliance was placed upon the decision of this court in the case of Savitaben Govindbhai Patel and others v. State of Gujarat, 2004 Cr.L.J. 3651, wherein the court had held that filing of an anticipatory bail application by the accused through their advocate cannot be said to be an appearance of the accused in a competent court, so far as proceeding initiated under section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an anticipatory bail application to avoid obligation to appear before the court and raise a contention in the proceeding under section 83 of the Code, claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of sections 82 and 83 is read closely. The learned Additional Public Prosecutor submitted that therefore, the submission that the accused were not absconding as they were availing of the statutory remedies available to them, does not merit acceptance. 6.2. Next it was submitted that the Investigating Officer does not gain any benefit by resorting to the provisions of section 73 of the Code, inasmuch as, under section 41 of the Code, the Investigating Officer after arresting the accused, can keep him in custody for 24 hours before producing him before the Magistrate, whereas if the accused is arrested pursuant to a warrant under section 70, he has to be produced before the Magistrate immediately. That whatsoever be the reasoning adopted in the impugned order, ultimately it is the warrant under section 70 of the Code which has to be considered and there is no error or irregularity in such warrant. That whatsoever be the reasoning adopted in the impugned order, ultimately it is the warrant under section 70 of the Code which has to be considered and there is no error or irregularity in such warrant. Referring to the contents of the application under section 73 of the Code, it was submitted that the Investigating Officer has not asked for a warrant under section 70 in aid of investigation and that an error has crept into the impugned order, whereby the learned Magistrate has stated something in the order, which was not prayed for by the Investigating Officer. 6.3. The attention of the Court was drawn to section 465 of the Code, to submit that even if there is any error, omission or irregularity in the impugned order, the same cannot be reversed or altered if there is no failure of justice. Referring to the scheme of Chapter XXXV of the Code, it was pointed out that under section 460 of the Code the irregularities which do not vitiate the proceedings have been set out, and under section 469 of the Code the irregularities which vitiate the proceedings have been set out. By virtue of section 465 of the Code, the legislature has specified the categories of cases where, in case there is any error, omission or irregularity, the order would not stand vitiated unless there is failure of justice. Therefore, while considering the validity of an order passed in a case falling within any of the categories enumerated therein, the only factor that the court can take into consideration if it comes to the conclusion that there is any error, omission or irregularity in the order, is whether on account of such error, omission or irregularity, failure of justice has been occasioned. If there is no failure of justice, such order cannot be reversed or altered. 6.4. If there is no failure of justice, such order cannot be reversed or altered. 6.4. In support of such submission, the learned Additional Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of Bai Radha v. The State of Gujarat, AIR 1970 SC 1396 , and more particularly paragraph 7 thereof wherein, the court with reference to the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, observed that all proceedings including investigation had to be conducted in accordance with the procedure laid down in the Criminal Procedure Code except to the extent of the specific provisions contained in the Act, whereas no such provision was brought to the notice of the court, nor had it been contended that section 537 of the Code would not govern the investigation, inquiry or trial of the offences with which the appellant therein was charged. The court held that the ratio of the decision in the case of Bhagwati (sic Bhagwant) Kishore Joshi, AIR 1964 SC 221 , must be followed and in the absence of any prejudice having been shown by noncompliance with the provisions of sub-sections (1) and (2) of section 15 of the Act, the order of the High Court must be upheld. Mr. Kodekar submitted that in the facts of the present case, the ingredients for invoking powers under section 73 of the Code are duly satisfied and the learned Magistrate has been satisfied that the petitioners were evading arrest, under the circumstances, merely because the learned Magistrate has stated that the warrant is required to be issued in aid of investigation, it cannot be said that it has occasioned failure of justice so as to warrant intervention by this court. It was contended that the error in the impugned order has been duly rectified while issuing the arrest warrant under section 70 of the Code and as such, there being no failure of justice, in view of the provisions of section 465 of the Code, it is not permissible for this court to interfere. It was, accordingly, urged that both the petitions being devoid of merits, are required to be dismissed. 7. In rejoinder, Mr. It was, accordingly, urged that both the petitions being devoid of merits, are required to be dismissed. 7. In rejoinder, Mr. Nanavaty, learned counsel for the petitioners, referring to the contents of Chapter XXXV of the Code, submitted that sections 460, 461 and 462 thereof lay down the categories of cases wherein an order or proceeding would not stand vitiated during the course of trial on account of any error or irregularity therein, whereas section 465 circumscribes the jurisdiction of the court exercising appellate, revisional or confirmation powers. While circumscribing such powers, the legislature has provided for the categories of cases in which even if there is an error, omission or irregularity, the order which is subject matter of appeal, revision or confirmation cannot be set aside, unless there is failure of justice. It was submitted that it is a settled principle of interpretation that the plain words contained in the section are to be given plain meaning and therefore, section 465 of the Code is also required to be interpreted accordingly, without reading anything more into it. Elaborating further upon the interpretation of section 465 of the Code, the attention of the court was drawn to sub-section (2) thereof, to submit that section 465 will have no application at this stage when the warrant under section 70 has not yet been executed, under the circumstances, the petitions cannot be declined solely on the ground of section 465 of the Code. It was further contended that the limitation engrafted in section 465 of the Code cannot curtail the jurisdiction conferred upon this court under Article 226 of the Constitution of India or section 482 of the Code. As and when any miscarriage of justice is occasioned and a palpably erroneous order is brought before the court, these barriers, even if applicable, would not bind the hands of the court in doing justice. 7.1. It was submitted that even if the impugned order is set aside by this court on the ground that the arrest warrant cannot be issued in aid of investigation, the same would not preclude the Investigating Officer from filing a fresh application within the four corners of law. It was urged that if the impugned order is not in accordance with law, the same has to be set aside. 7.2. It was urged that if the impugned order is not in accordance with law, the same has to be set aside. 7.2. As regards the decision of this court in Savitaben Govindbhai Patel and others v. State of Gujarat (supra) on which strong reliance had been placed on behalf of the respondents, it was submitted that the said decision would not apply to the facts of the present case. It was argued that it is the decision of the Supreme Court in State through Central Bureau of Investigation v. Dawood Ibrahim Kaskar (supra) which would be directly applicable to the facts of the present case and that the learned Magistrate having issued a warrant on a ground which is not germane, viz. in aid of investigation, the impugned order deserves to be quashed and set aside. 7.3. Referring to the impugned order, it was submitted that the learned Magistrate, without reference to the pending proceedings, has issued a warrant for aiding the investigation. The power under section 73 of the Code is to be exercised when the investigating agency is helpless and not at the threshold of the investigation. Such action on the part of the investing agency amounts to denial of the remedy available under ordinary law, which is evident from the fact that one of the grounds which has weighed with the court while rejecting the anticipatory bail application of the petitioners, was that a warrant under section 70 of the Code had been issued against him. It was urged that the error in the impugned order goes to the root of the matter and that the warrant is also a product of such order and is a mechanical process, hence, the contention that the warrant rectifies the error committed by the learned Magistrate in the impugned order, cannot be accepted. It was argued that the very issuance of a warrant is required to be backed by a reasoned order and if the reasons assigned are not in consonance with the settled legal position, the order stands vitiated and cannot be sustained. 7.4. It was argued that the very issuance of a warrant is required to be backed by a reasoned order and if the reasons assigned are not in consonance with the settled legal position, the order stands vitiated and cannot be sustained. 7.4. As regards the preliminary contention regarding the very maintainability of the petitions in the light of the alternative remedy of revision under section 397 of the Code, the learned counsel submitted that under section 397 of the Code, the powers of revision are circumscribed, inasmuch as, a revision application would be maintainable only against a final order and not against the interlocutory order. In these circumstances, challenging the impugned order by way of revision is not an efficacious remedy and that the petitioners have advisedly not preferred revisions under section 397 of the Code as the order under section 73 of the Code may be considered to be an interlocutory order. 8. In the backdrop of the above facts and contentions, the first question that arises for consideration is as regards the maintainability of the petitions. If the petitions are held to be maintainable, the principal question that would then arise for consideration is as to whether the impugned order made under section 73 of the Code suffers from any legal infirmity. If the answer is in the affirmative, the next question that requires to be answered is whether the provisions of section 465 of the Code would be applicable to an order passed under section 73 of the Code for issuance of a search warrant. If the said question is answered in the negative, the impugned order would be required to be set aside. However, if the question is answered in the affirmative, the question that would then arise is whether the error in the impugned order is such as would occasion failure of justice. 9. The question of maintainability of the petition being in the nature of a preliminary contention would be required to be dealt with at the inception. 10. At the outset, it may be noted that the present petitions have been filed under Article 226 of the Constitution of India read with section 482 of the Code. Thus, the petitioners have invoked the extraordinary powers of this court under Article 226 of the Constitution of India as well as its inherent powers under section 482 of the Code. At the outset, it may be noted that the present petitions have been filed under Article 226 of the Constitution of India read with section 482 of the Code. Thus, the petitioners have invoked the extraordinary powers of this court under Article 226 of the Constitution of India as well as its inherent powers under section 482 of the Code. Though various submissions have been advanced on the question of the maintainability of the petitions on the ground of availability of an alternative remedy, which are sought to be countered by the learned counsel for the petitioners, it is not necessary to deal with the same, inasmuch as, the said question is no longer res integra. The Supreme Court in the case of Dhariwal Tobacco Products Limited v. State of Maharashtra, (2009) 2 SCC 370 , has held that an application under section 482 of the Code cannot be dismissed only on the premise that an alternative remedy of filing a revision application under section 397 of the Code is available. The court overruled the contrary view taken by the Bombay High Court in the case of V.K. Jain v. Pratap V. Padpde, (2005) 30 Mah LJ 778, to the effect that the jurisdiction under section 482 of the Code will not be exercised if recourse can be taken by the applicants to the remedy of filing a revision application under section 397 of the Code. Reliance placed by the learned Additional Public Prosecutor on the decision of this court in the case of Ajendraprasad Narendraprasad Pandey v. State of Gujarat (supra), therefore, does not carry the case of the respondents any further. Thus, the preliminary objection regarding maintainability of the petitions cannot be accepted. 11. Before adverting to the merits of the case, reference may be made to the contents of the application made by the respondents for issuance of warrant under section 70 of the Code. The applicant, viz., Assistant Commissioner of Police, “G” Division, Surat City, in the said application, has firstly, briefly set out the contents of the first information report lodged against the petitioners. Thereafter, the steps taken for searching out the accused have been narrated and it has been stated that the accused are evading arrest and are not cooperating with the investigation. Thereafter, the steps taken for searching out the accused have been narrated and it has been stated that the accused are evading arrest and are not cooperating with the investigation. It is also stated that the accused are trying to influence the witnesses and misusing the influence they have on account of the faith of the followers. All the accused are not cooperating with the investigation and are adversely affecting the investigation that is being carried out by the police. Facts regarding the pendency of Special Criminal Application No. 3101 of 2013 for quashing filed before this court as well as the application for anticipatory bail filed before the Sessions Court are also mentioned. Lastly, in paragraph 12 of the application, as translated into English, it has been stated thus: “As soon as the offence was declared, the Investigating Officer had issued notices to the above accused to remain present for the investigation, but the accused did not remain present and out of the said accused, Narayan Sai has filed a quashing petition before the Gujarat High Court and an application for anticipatory bail before the Sessions Court, therefore, right from the inception, it was the intention of the accused to stall the investigation procedure. For the purpose of bringing these accused within the purview of the investigation process and for completing the same and in the interest of the investigation, it is very necessary to declare them to be absconders, and out of these accused, accused Narayan Sai and accused Bhavna alias Jamuna possess Indian passports and other accused also have passports and as they are likely to flee abroad in future, red corner notices may be required to be issued by Interpol, hence, it is humbly requested that a warrant be issued in English in accordance with section 70 of the Code.” 12. Thus, from the contents of the application, it is apparent that though the respondent-applicant had set out facts regarding attempts made by the Investigating agency to apprehend the accused and the conduct of the accused to show that they are evading arrest, it is prayed that warrant in accordance with section 70 of the Code be issued as it is necessary to bring the accused within the purview of the investigation process and completing the same and because in the interest of investigation, it is necessary to declare them as absconders. The said application has been granted by the learned Chief Judicial Magistrate by holding thus: “5. On going through the documentary evidence produced in relation to the investigation carried out by the Investigating Agency, prima-facie it appears to be an elaborate and full-fledged investigation to secure the presence of the accused mentioned in the application. It seems that, the Investigating Agency has left no stone unturned to search out the accused with all available resources with them. It also transpires from the documentary evidence that, although notices issued to the accused, and although search having been carried out at the places of their addresses, instead of surrendering themselves before the Investigating Agency, they have been hiding themselves at some unknown place and went out of reach of the Investigating Agency in order not to cooperate in investigation. In support of his submissions, the learned APP has placed reliance on the decision rendered by our own High Court in the case of Ajendraprasad Narendraprasad Pandey v. State of Gujarat reported in 2006 (2) GLH page 412. It is observed by the Hon’ble High Court of Gujarat that, Magistrate may issue Warrant against an absconding accused even in a case where no summons or notice was issued to the accused. It is further observed that, Magistrate is not required to reproduce the reasons mentioned in the application. If it transpires that an accused is keeping away or is absconding, and that his presence cannot be secured otherwise then by executing a warrant issued by a competent court, the Police Officer has to obtain order from the competent court. 6 As stated herein above, it appears that the Investigating Agency has issued Look Out notice against the accused and have tried to serve the notice upon the accused in order to secure their presence for investigation. In support of the same, the Investigating Agency has produced bulky documentary evidence. The documentary evidence clearly leads me to believe that, in spite of strenuous and diligent efforts put in by the Investigating agency, the accused persons could not be searched out, and are absconding. This conduct on the part of the accused persons clearly show their intention to avoid their surrender before the Investigating Agency, and thereby, not making themselves available for investigation which is required to probe further in the investigation of this case. This conduct on the part of the accused persons clearly show their intention to avoid their surrender before the Investigating Agency, and thereby, not making themselves available for investigation which is required to probe further in the investigation of this case. This attitude of noncooperation on the part of the accused persons mentioned in the application has lead the Investigating Agency to take resort of law by way of filing this application seeking issuance of Warrant under section 70 of the Code of Criminal Procedure. The Investigating Agency has also produced the Gujarat Police Manual and has pointed out the provisions, more particularly, Rule 219 of the Manual. Sub-clause (4) sets out provision of request to be made before the Magistrate for issuance of warrant. 7 In view of what has been observed herein above, it clearly appears that, the accused persons mentioned in the application are purposely evading their presence before the Investigating Agency, and in order to bring the accused persons before the Investigating agency for the purpose of investigation, Warrant under section 70 of the Code of Criminal Procedure is required to be issued for their arrest. Hence, the submissions made on behalf of the Investigating Agency deserves acceptance, and for the reasons stated herein above, I am inclined to entertain this application submitted by the Investigating Agency. In the result, I pass the following order: ORDER This application is hereby allowed. The prayer for issuance of Warrant under section 70 of the Code of Criminal Procedure sought for by the Investigating Agency in connection with the case registered at Jehangirpura Police Station vide C.R. No. 31/13 is hereby granted for searching the presence of the accused persons. Office is hereby directed to issue Warrant as per the provisions contained in under section 70 of the Code of Criminal Procedure against the accused (1) Narayan alias Narayan Sai alias Mota Bhagwan, s/o Asharam Bapu, Resident of : Sant Asharam Ashram, Motera, Ahmedabad; (2) Kaushal Thakur alias Hanuman, S/o Lal Bahadur Thakur, Resident of : village Ahiyari, Taluka Kaamtol, District Durbhanga, presently having address at : Jehangirpura Ashram; (3) Ganga alias Dharmishtha alias Ganga, D/o Madhusudan Patel, and wife of Pramodkumar Mishra, Resident of : Gaambhoi Ashram, District Sabarkantha, Gujarat, Orig. Native of Lila Bungalow, Village Bhailee, District Vadodara; and (4) Jamna alias Bhavna, D/o D/o Madhusudan Patel, Resident of : Gaambhoi Ashram, District Sabarkantha, Gujarat, Orig. Native of Lila Bungalow, Village Bhailee, District Vadodara; and (4) Jamna alias Bhavna, D/o D/o Madhusudan Patel, Resident of : Gaambhoi Ashram, District Sabarkantha, Gujarat, Orig. Native of Lila Bungalow, Village Bhailee, District Vadodara, as per the provisions contained in said section, to secure the presence of the accused person for investigation.” 13. At this stage, reference may be made to the decision of the Supreme Court in the case of State through Central Bureau of Investigation v. Dawood Ibrahim Kaskar (supra). In the said decision, the question before the Supreme Court was as to when and under what circumstances a court can invoke the provisions of section 73 of the Code of Criminal Procedure, 1973. While deciding the said question, one of the moot questions that arose for consideration was whether a court can issue a warrant to apprehend a person during investigation for his production before the police in aid of the investigation. The court held thus: “20 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 cognisable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognisable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognisable 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 evade 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. If the accused evade 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 power under Section 73, for the person to be apprehended is “accused of a non-bailable offence and is evading arrest.” 21 xxx xxx 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 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 hand-writings 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. 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. 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 Court solely for the production of the accused before the police in aid of investigation.” 14. Thus, the Supreme Court has held that warrant of arrest under section 73 of the Code cannot be issued by the courts solely for production of the accused before the police in aid of investigation. Examining the facts of the present case, in the light of the above decision, it is clear that the impugned order is contrary to the law laid down in the said decision, inasmuch as, the warrant under section 70 of the Code has been issued solely in aid of investigation. Thus, the impugned order clearly suffers from a legal infirmity, which fact is also not disputed on behalf of the respondents. However, it has been contended that ultimately, the said error in the judgment stands rectified when the actual warrant is issued, because the same is in the format provided under the Code and that ultimately after arresting the accused under the warrant under section 70 of the Code, the same procedure would be followed even if the warrant is issued in aid of investigation, because the procedure for making remand application would still be required to be followed. In the opinion of this court, such contention does not merit acceptance, inasmuch as, the subsequent issuance of warrant in the standard format cannot cure the defect in the order, which goes to the root of the matter. Besides, the validity of the impugned order cannot be decided on the basis of a subsequent step which is required to be taken pursuant thereto, which is more or less ministerial in nature. Besides, the validity of the impugned order cannot be decided on the basis of a subsequent step which is required to be taken pursuant thereto, which is more or less ministerial in nature. Therefore, the impugned order suffers from a legal infirmity which would render it unsustainable. 15. However, on behalf of the respondents, Mr. R.C. Kodekar, learned Additional Public Prosecutor has placed reliance upon the provisions of section 465 of the Code, to contend that the impugned order, even if erroneous, cannot be set aside unless the same occasions failure of justice. It has been submitted that the accused have clearly been evading arrest in a non-bailable offence and as such, the requirements for exercise of powers under section 73 of the Code are clearly satisfied, hence, merely because the learned Magistrate has committed an error in stating that the warrant is issued in aid of investigation, the impugned order cannot be reversed as the same does not occasion failure of justice. 16. It would, therefore, be necessary to consider the applicability or otherwise of section 465 of the Code, which reads thus : “465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 17. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 17. Upon breaking the said section, section 465 can be analysed as follows : - No finding, sentence or order - passed by a Court of competent jurisdiction - shall be reversed or altered by a Court of appeal, confirmation or revision - on account of any error, omission or irregularity - in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or - in any inquiry or other proceedings under this Code, - or any error, or irregularity in any sanction for the prosecution, - unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 18. Thus, what section 465 of the Code provides is that a court of appeal, confirmation or revision cannot reverse or alter any finding, sentence or order passed by a court of competent jurisdiction on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 19. At this stage, reference may be made to the decision of the Supreme Court in the case of Wille (William) Slaney v. State of M.P., (1955) 2 SCR 1140 , wherein the court has held thus: “5. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if be is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere in consequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.” 20. Section 465 of the Code appears to be based upon the above principle, viz. that mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice. Thus, on a plain reading of section 465 of the Code, it is apparent that such section can be invoked at the stage when the final judgment has been delivered and such final order of the court of competent jurisdiction cannot be reversed or altered in appeal, revision or confirmation on the ground of an error, omission or irregularity in the in any of the eventualities mentioned therein unless the same occasions failure of justice. The said provision cannot be invoked in respect of other proceedings initiated under the Code. 21. In State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 , the Supreme Court held thus: “12. The said provision cannot be invoked in respect of other proceedings initiated under the Code. 21. In State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 , the Supreme Court held thus: “12. The argument of the learned counsel for the respondent may be elaborated thus: Whenever there is a consistent disregard of the provisions of the Code of Criminal Procedure in the matter of investigation it must be held almost in all cases that it' has prejudiced the accused in the matter of trial, for otherwise it would enable a police officer below the rank of Deputy Superintendent of Police to make an investigation free from the statutory safeguards designed to prevent the abuse of police powers, to secure the necessary information and thereafter to take the requisite permission of the Magistrate and then to shape his investigation to achieve the desired result or to implement his scheme. No doubt this practise, if it exists, must be condemned; but the question is, does the infringement of the salutary provisions of the Act in the matter of investigation, without more, invalidate the trial? If we accept the broad proposition advanced by the learned counsel, we would be disregarding the provisions of s. 537 of the Code of Criminal Procedure; we would be ignoring an honest body of compelling evidence on the basis of the dereliction of duty by the police. The question is not whether in investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation: there must be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in the investigation.' In this case, as we have earlier pointed out, not only the trial was fair and the evidence convincing, but even the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provisions of the Code of Criminal Procedure. We cannot, therefore, hold that the accused has been prejudiced by the illegality committed by the police in the first stage of 'the investigation.” 22. In Bai Radha v. The State of Gujarat, 1969 (1) SCC 43 , the Supreme Court was dealing with a case where all the three accused persons were acquitted by the Magistrate, the State preferred an appeal to the High Court against the appellant and the third accused only. The High Court set aside the order of acquittal in respect of the appellant and convicted her for offences punishable under sections 3(1) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. Before the Supreme Court, it was contended that the entire proceedings stood vitiated, inasmuch as, the requirement of sub-section (2) of section 15 of the Act had not been complied with. The court held that the trial of the appellant therein was for contravention of certain provisions of the Act and the search was made in respect of those offences. The trial having taken place, the question of the applicability of section 537 of the Criminal Procedure Code, 1898 will at once arise. If the non-observance of the provisions of section 15(2) is not an illegality but is a mere irregularity, then the sentence cannot be set aside unless it can be shown that such irregularity has caused failure of justice. If the non-observance of the provisions of section 15(2) is not an illegality but is a mere irregularity, then the sentence cannot be set aside unless it can be shown that such irregularity has caused failure of justice. (Section 537 of the Code of 1898 is in pari materia to section 465 of the Code of 1973.) The court reiterated what was stated in H.N. Rishbud and Inder Singh v. The State of Delhi, 1955(1) SCR 1150 , that a defect or an illegality in the investigation, however serious, has no direct bearing on the competency or the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, section 537 of the Code of Criminal Procedure, is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result in not affected. Thus, what is observed in the said decision is that after the trial has taken place, when it is contended that the entire proceeding stands vitiated on account of contravention of certain provisions of the Act, the question of applicability of section 537 of the Code would at once arise. 23. In Rattiram v. State of M.P., (2012) 4 SCC 516 , the Supreme Court held as follows : “36. In Bhooraji, (2001) 7 SCC 679 , the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code. Section 465 reads as follows: “465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. ”37. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a “court of competent jurisdiction” and “error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial” and “a failure of justice has in fact been occasioned thereby”. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term “a failure of justice” has been treated as the sine qua non for setting aside the conviction.” “39. The question posed by us fundamentally relates to the non-compliance with such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.” “42. It would not be an exaggeration if it is stated that a “fair trial” is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by rule of law. Denial of “fair trial” is crucifixion of human rights. It is ingrained in the concept of due process of law. It would not be an exaggeration if it is stated that a “fair trial” is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by rule of law. Denial of “fair trial” is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of “fair trial” and the practise of the same in the course of trial, it is obligatory on the part of the courts to see whether in an individual case or category of cases, because of noncompliance with a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred.” “47. In State v. T. Venkatesh Murthy the High Court of Karnataka had upheld an order of discharge passed by the trial court on the ground that the sanction granted to prosecute the accused was not in order. The two-Judge Bench referred to Sections 462 and 465 of the Code and ultimately held thus: “13. In State of M.P. v. Bhoorai (supra) the true essence of the expression ‘failure of justice’ was highlighted. Section 465 of the Code in fact deals with ‘finding or sentences when reversible by reason of error, omission or irregularity’, in sanction. 14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding ‘failure of justice’. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or Revisional Court. The requirement of sub-section (4) about raising the issue at the earliest stage has not been also considered. Unfortunately, the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial Judge. The orders are, therefore, indefensible. We set aside the said orders. The same logic also applies to the appellate or Revisional Court. The requirement of sub-section (4) about raising the issue at the earliest stage has not been also considered. Unfortunately, the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial Judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial court to record findings in terms of clause (b) of sub-section (3) and sub-section (4) of Section 19.” We have referred to the said authority only for the purpose of a failure of justice and the discernible factum that it had concurred with the view taken in Bhooraji. That apart, the matter was remitted to adjudge the issue whether there had been failure of justice, and it was so directed as the controversy pertained to the discharge of the accused. 24. In Central Bureau of Investigation v. V.K. Sehgal, (1999) 8 SCC 501 , the Supreme Court held thus: “10 A Court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Subsection (2) enjoins on the Court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court.” The concept of failure of justice was further elaborated as follows: “11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.” 25. In Nishan Singh v. State of Punjab, (2008) 17 SCC 505 , it was held thus : 23. What would constitute “failure to justice” came up for consideration before this Court in State of M.P. v. Bhooraji wherein, inter alia, it was held that: “23. We conclude that the trial held by the Sessions Court reaching the judgment impugned before the High Court in appeal was conducted by a court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh High Court.” 24. In M.C. Sulkunte (Dr.) v. State of Mysore this Court held: “15. … It has been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation.” 25. In CBI v. V.K. Sehgal it was held: “10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. In CBI v. V.K. Sehgal it was held: “10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.” It was observed: “11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.” 26. In State of M.P. v. Bhooraji, (2001) 7 SCC 679 , it has been held thus : “14 We have to examine Section 465(1) of the Code in the above context. It is extracted below: “465. In State of M.P. v. Bhooraji, (2001) 7 SCC 679 , it has been held thus : “14 We have to examine Section 465(1) of the Code in the above context. It is extracted below: “465. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.” 15 A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity. 16 What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka ( 2001 (2) SCC 577 ) thus: “23 We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.” 27. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.” 27. From the above decisions, it can be culled out that the question of applicability of section 465 of the Code would arise at the stage when the trial has concluded after which, if the judgment is impugned, any finding, sentence or order passed by the court of competent jurisdiction cannot be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant etc. or other proceedings before or during the trial or in any inquiry or other proceedings under the Code, unless in the opinion of that court, failure of justice has, in fact, been occasioned thereby. Section 465 of the Code, therefore, cannot be invoked in case of any ancillary proceeding under the Code during the pendency of investigation and trial. Consequently, section 465 of the Code cannot be invoked in respect of an order passed by a Magistrate under section 73 of the Code for issuance of a warrant under section 70 of the Code. Reliance placed upon section 465 of the Code, therefore, does not carry the case of the second respondent any further. Once section 465 of the Code does not come to the aid of the respondents, the impugned order has to be examined only on merits. As noted here in above, the impugned order suffers from the infirmity of being contrary to the law laid down by the Supreme Court in the case of State through Central Bureau of Investigation v. Dawood Ibrahim Kaskar (supra), which renders the same unsustainable. 28. At this stage, it may be noted that between the time the matter was heard and the judgment could be dictated, both the accused have been arrested by the police. However, the learned counsel for the petitioners submitted that the consequences of arrest under section 41 of the Code and arrest under a warrant under section 70 of the Code are different and as such, the petitions are required to be decided on merits. However, the learned counsel for the petitioners submitted that the consequences of arrest under section 41 of the Code and arrest under a warrant under section 70 of the Code are different and as such, the petitions are required to be decided on merits. It is in these circumstances, that though pursuant to the impugned order, the warrant under section 70 of the Code has already been executed, the Court has deemed it fit to decide the matter on merits. 29. For the foregoing reasons, the petitions succeed and are, accordingly, allowed. The impugned order dated 28.10.2013 passed by the learned Chief Judicial Magistrate, Surat below the application dated 19.10.2013, is hereby quashed and set aside. As the petitioners have already been arrested, they shall be treated as having been arrested in exercise of powers under section 41 of the Code. Rule is made absolute accordingly. 30. At this stage, Mr. R.C. Kodekar, learned Additional Public Prosecutor prays for stay of the present judgment. Having regard to the facts of the case, the request is declined. Petitions allowed.