Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 875 (ORI)

Mahendra Singh Rana @ Batu v. State of Orissa

2016-09-26

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. Heard Mr. B. K. Sharma, learned counsel for the petitioner and Mr. Deepak Kumar, learned Additional Standing Counsel for the State. This is an application under section 482 of Cr.P.C. filed by the petitioner challenging the order dated 05.04.2005 passed by the learned J.M.F.C., Barbil in G.R. Case No. 106 of 2005 in issuing non-bailable warrant of arrest against the petitioner on the application filed by the investigating officer. The said case arises out of Joda P.S. Case No.61 of 2005. On perusal of the application dated 03.04.2005 filed by the S.I. of Police, Joda Police Station in connection with Joda P.S. Case No. 61 dated 14.03.2005 under sections 379/411/34 of the Indian Penal Code and section 12 of the Orissa Mineral (Prevention of Theft, Smuggling and other Unlawful Activities) Act, 1988, it appears that during course of investigation, it was ascertained that the petitioner is the owner of a Tipper bearing Registration No. OR-09C-0462 and he conspired with the other co-accused persons in committing the theft of manganese ore from the lease area of TISCO mines and in spite of efforts, the petitioner could not be arrested and he was avoiding police arrest and his whereabouts was not known and the investigation of the case was complete except the arrest of the petitioner. Basing on such application filed by the S.I. of Police, Joda Police Station, the non-bailable warrant of arrest was issued. Section 73 of Cr.P.C. empowers the Chief Judicial Magistrate or a First Class Magistrate to issue warrant to any person for the arrest of following person within his local jurisdiction:- (i) any escaped convict; (ii) proclaimed offender; (iii) any person who is accused of a non-bailable offence and is evading arrest. In the present case (i) and (ii) are not applicable. So far as (iii) is concerned, since the investigation was under progress, materials should have been placed before the learned Magistrate to his satisfaction that the petitioner who is an accused of a non-bailable offence is evading arrest. Only after being satisfied on the materials produced before him, the Magistrate could have directed for issuance of non-bailable warrant of arrest. So far as (iii) is concerned, since the investigation was under progress, materials should have been placed before the learned Magistrate to his satisfaction that the petitioner who is an accused of a non-bailable offence is evading arrest. Only after being satisfied on the materials produced before him, the Magistrate could have directed for issuance of non-bailable warrant of arrest. In the present case, on the mere application of the Investigating Officer without any supporting documents, the impugned order of issuance of N.B.W. has been mechanically passed and the satisfaction of the Magistrate that the petitioner is evading arrest has also not been recorded. In case of Dipti Ranjan Parida @ Dilu -Vrs.-State of Orissa reported in (2008) 41 Orissa Criminal Reports 9, it has been held that when the order of the Magistrate does not indicate about his satisfaction that the accused should be held to be evading arrest, issuance of non-bailable warrant of arrest mechanically was quashed. In case of State through C.B.I. –Vrs.-Dawood Ibrahim Kaskar reported in AIR 1997 SC 2494 , it is held that 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 handwriting etc. 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 of Cr.P.C. Law is well settled that exercise of judicial discretion must be based on materials placed before the Magistrate and it cannot be done mechanically just to aid the police during course of investigation. Since the impugned order, in my view, appears to have been passed in a mechanical manner without assigning any satisfaction after perusal of the materials available on record, I am inclined to exercise of my inherent power under section 482 Cr.P.C. and in order to prevent abuse of process, quash the impugned order dated 05.04.2005 passed by the learned J.M.F.C., Barbil. Accordingly, CRLMC application is allowed.