ORDER By the Court.-Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance. 2. This application is directed against the order dated 8.10.2013 passed by the In-charge Special Judge, Vigilance in Lalpur P.S. Case No. 92 of 2013, whereby and whereunder warrant of arrested has been ordered to be issued against the petitioner. At the same time, the order dated 4.11.2013 is also under challenge whereby process under Section 82, Cr PC has also been ordered to be issued against the petitioner. 3. Mr. Indrajit Sinha, learned counsel appearing for the petitioner, submits that the petitioner had never been named in the first information report. However, during investigation he has been made accused. As soon as the petitioner came to know that he has been made accused, he filed an anticipatory bail application on 18.10.2012 before the Special Judge, Vigilance. While the matter was pending for consideration, the Court on the requisition submitted by the I.O. issued process under Section 82, Cr PC against the petitioner though the Court was very well knowing that the matter relating to anticipatory bail is still pending. 4. Further, it was submitted that the order, under which warrant of arrest was ordered to be issued, is not in consonance with the provision as contained in Section 73, Cr PC and thereby the order, under which warrant of arrest was ordered to be issued, is bad. The subsequent order, under which process under Section 82, Cr PC has been ordered to be issued, becomes automatically bad. 5. As against this, Mr. Shailesh, learned counsel appearing for Vigilance, submits that from the impugned order, it does appear that the Special Judge, Vigilance while passing an order for issuance of warrant of arrest against the petitioner did not record its satisfaction for issuance of warrant of arrest but it does appear that all the evidences, which were collected against the petitioner, were placed before the Court and the Court even took notice of it and, therefore, the order, under which warrant of arrest has been ordered to be issued, cannot be said to be bad. 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. 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 under Section 71." 7. From bare perusal of the section, it is manifest that it confers a power upon the Magistrate to issue warrant for 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 v. 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 he cannot arrest without warrant. As already noticed under this section a police officer can investigate into a non-cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, [like Section 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 powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73 for the person to be apprehended is "accused of a non-bailable offence and is evading arrest." 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. While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation." 9. 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. 10. In this context, I may refer to a decision rendered in a case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another, (2012) 9 SCC 791 , wherein 111eir Lordships observed as follows :- 10. It needs little emphasis that since the execution of a non-bailable 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. It needs little emphasis that since the execution of a non-bailable 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 non-bailable 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 aye dangers in any choice." 11. Be that as it may, it is for the Court. which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable 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." 11. In these backgrounds, it is to be considered as to whether warrant of arrest issued against the petitioner is in consonance with the provision of Section 73, Cr PC or not. 12. It has already been noticed that initially the petitioner was never made an accused in the first information report. In these backgrounds, it is to be considered as to whether warrant of arrest issued against the petitioner is in consonance with the provision of Section 73, Cr PC or not. 12. It has already been noticed that initially the petitioner was never made an accused in the first information report. Subsequently, as per learned counsel for the Vigilance, the materials were collected against the petitioner showing his involvement in the alleged offence and under the circumstances, a requisition was submitted before the Court for issuance of warrant of arrest when the Vigilance in spite of its best efforts failed to apprehend the petitioner. However, from the impugned order, it never appears that the Magistrate on being satisfied that the petitioner is evading his arrest passed an order for issuance of warrant of arrest, rather he seems to have taken notice of certain materials showing the petitioner's involvement though it is also not in specific term but that would never be a ground for issuance of warrant of arrest in terms of the provision as contained in Section 73, Cr PC. 13. Accordingly, the Court does not seem to have passed the order dated 8.10.2013 in terms of the provision of Section 73, Cr PC. Hence, the order dated 8.10.2013 and also the order dated 4.11.2013, under which process under Section 82, Cr PC has been ordered to be issued, are hereby set aside. 14. However, before parting with this order, it be observed that notwithstanding the fact that the orders for issuance of arrest and process under Section 82, Cr PC have been quashed, the police or the investigating agency does have power to arrest the person even in absence of warrant of arrest in a cognizable offence but that power is subject to the conditions stipulated under Section 41, Cr PC. Accordingly, this application stands disposed of. Petition disposed of.