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Allahabad High Court · body

2023 DIGILAW 1370 (ALL)

Kalam Uddin v. State Of U. P.

2023-05-19

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. The instant writ petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 3.3.2023 passed by C.J.M., Prayagraj whereby an application moved by the petitioner in Case No. 1556 of 2022 (State vs. Lallu @ Abdul Mahboob and others) under Sections 147, 148, 307, 323, 341, 504 IPC, P.S. Mau Aima, District Prayagraj, has been dismissed. 2. The brief facts of the case relevant for the purpose of present writ petition are that the petitioner lodged an F.I.R. on 12.8.2022 at 13:52 hours against Waseem @ Gabbar and five others, named accused persons with averments that on 12.8.2022, the informant was coming back to home at around 10:00 AM after participating in Fatiya at the place of his friend Munnan, the accused Waseem acting under conspiracy, way laid him and his companions; they started abusing him and his companions Mohd. Amir, Jafee Arsad, Mohd. Izhar and on exhortation of accused persons; accused Shadab had opened fire on him in which he suffered firearm injury on his left hand and on being given beating by lathi danda by accused persons, Mohd. Amir, Mohd. Izhar and Jafee Arshad suffered head injury. 3. In injury report of the informant Kalamuddin, one lacerated wound 1.5 X 0.3 cm muscle deep was found on his left hand, which was referred for x-ray; after conducting x-ray examination, he was admitted to SRN hospital Prayagraj on 12.8.2022 and was discharged on 18.8.2022; doctor has reported that patient managed operatively by foreign body removal from left arm on 16.8.2022; other injured persons, who also suffered head injury and substantial injury on their person, however, in x-ray of his skull, no fracture was found; police investigated the offence and submitted charge-sheet against four named accused persons in aforesaid charges on 5.11.2022. However, on account of accused Waseem @ Gabbar have still at large, investigation is kept pending against him. However, on account of accused Waseem @ Gabbar have still at large, investigation is kept pending against him. Present petitioner being aggrieved by inaction of police in apprehending accused Waseem for long time moved complaint to police commissioner and other higher authorities of police through registered post on 23.12.2022, wherein, he stated that NBW was issued against him on 13.10.2022 but even after lapse of period of two months no action has been taken against him under Section 82 Cr.P.C. and said accused is threatening him and his family members to withdraw the case lodged against him; petitioner also moved an application on 3.3.2023 before the court below, wherein, he stated that accused Waseem has not been arrested by the police as yet despite the fact that court has issued warrant of arrest against him on 13.10.2022 but failed to arrest him even after lapse of four months thereafter and said accused is threatening the informant and injured witnesses and their family members to withdraw cases against him; he also stated that his brother is serving in police department and for that reason an understanding has reached between him and police officials that he will not be arrested and his name will be dropped from the case; he prayed for ensuring arrest of said accused Waseem by complying relevant legal provision; the court below, in a cryptic order dismissed the said application by observing that as the investigation has carried out in the matter, a person cannot be directed to be arrested during investigation. 4. Heard learned counsel for the petitioner, learned AGA for the State-respondent and perused the material on record. 5. Learned counsel has placed reliance on judgement of Hon'ble Apex Court in Sakiri Vasu vs. State of U.P., 2008 AIR (SC) 907, wherein, Hon'ble Apex court has illustrated the scope of Section 154, 156(3) and 482 Cr.P.C. and observed as under: "if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. Even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied, he can order a proper investigation and take other suitable steps and pass such order as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under section 156(3) Cr.P.C. Section 156(3) Cr.P.C. provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation." 6. A perusal of aforesaid dictum of Hon'ble Apex Court reveals that Hon'ble Apex Court recognized the power of Magistrate to monitor the investigation to ensure that investigation is being done properly (though he cannot investigate himself). A perusal of aforesaid dictum of Hon'ble Apex Court reveals that Hon'ble Apex Court recognized the power of Magistrate to monitor the investigation to ensure that investigation is being done properly (though he cannot investigate himself). What will be the scope of monitoring the investigation by the police is a matter of perception in present context. 7. Section 73 of Cr.P.C. provides that 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. So the bare reading of the section shows that Magistrate has a discretion to issue Non-Bailable Warrant (NBW) and the conditions under which he can issue. Whenever Discretion comes it has to be exercised judiciously. This find in usual course that police officials come to the court prior for issuance of warrant of arrest against some warranted accused on the ground that he evading arrest and he committed non bailable offence as issuance of NBW involves curtailment or deprivation of personal liberty of a person which is most previous right of an individual, therefore, the courts have to be cautious before issuing NBW; court has to strike balance between the liberty which is precious for an individual as well as the public welfare, interest and maintenance of law and order which requires apprehension of an accused who has allegedly committed some non bailable or serious offence. 8. Hon'ble Supreme court in State through CBI vs. Dawood Ibrahim Kaskar and others, (2000) 10 SCC 438 considered the issue as to whether arrest warrant can be issued on the stage of investigation and finally settled it while holding that Section 73 of Cr.P.C. confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also. To explain this point, Court gave example of Section 155 of the Code, which provides that 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. To explain this point, Court gave example of Section 155 of the Code, which provides that 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 of the I.P.C.) 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 evades 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. The very fact that police officer may arrest without warrant of Magistrate under Section 155 Cr.P.C. is implied that Magistrate may issue a warrant even at the stage of Section 155 Cr.P.C. 9. 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. Since warrant is and can be issued for appearance before the court only and only for production of accused before the police in aid of investigation, hence authorization 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. The reason behind seeking warrant of arrest for an accused, suspect of committing non bailable offence at the instance of police, who is otherwise empowered to arrest such person without a warrant by virtue of power given under Section 41 Cr.P.C. for under Section 24 of the Police Act is that it can be possible that police after completing the investigation even at the stage of submission of charge-sheet is still unable to arrest the accused; accused keeps absconding and I.O. may ask the court to accept the charge-sheet in abscondance of the accused with submission that inspite of sufficient efforts to trace the accused he could not arrest him and he asks the court to take back of executed arrest and issue proclamation against the accused under Section 82 Cr.P.C.; there is no gainsaying the fact that process under Section 82 Cr.P.C. can only be issued by the Magistrate after issuance of NBW and after expiry of one month of issuance of process under Section 82 Cr.P.C. and thereafter only the process under Section 83 Cr.P.C. can be issued. The court can give halt to try such accused after declaring him as absconder in terms of Section 299 Cr.P.C. on recording of evidence of witnesses produced by prosecution. It is needless to say that provision of proclamation and attachment are envisaged under Section 82 and 83 Cr.P.C. is to compel the appearance of accused who is evading the arrest; police cannot initiate the proceeding under Section 82/83 Cr.P.C. against absconding accused unless the court is issued warrant of arrest prior to that. Resultantly, if the police 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 83 to 86). 10. The Delhi High Court in Sunil Tyagi vs Govt. of NCT of Delhi & Anr in Crl. M.C. No. 5238 of 2013 decided on June 28, 2021, has laid down broad guidelines to ensure the NBWs are issued only against the correct persons during the stage of investigation, which are as follows: 11. Issuance of warrant of arrest where the offence is cognizable & non-bailable and proposed warrantee is evading his arrest. M.C. No. 5238 of 2013 decided on June 28, 2021, has laid down broad guidelines to ensure the NBWs are issued only against the correct persons during the stage of investigation, which are as follows: 11. Issuance of warrant of arrest where the offence is cognizable & non-bailable and proposed warrantee is evading his arrest. While applying for warrant, the Investigating Officer must show the Magistrate his efforts made for arresting the proposed warrantee. Investigating Officer must show that the proposed warrantee is ordinarily residing at or was very recently residing at some address which is in the knowledge of the IO through any manner and that now the proposed warrantee is not available at that address due to his deliberate intention to avoid custody in the case in question. No warrant shall be issued against a proposed warrantee merely on the ground that he is not available for the IO/ Police officials for the purpose of joining him in the investigation. Investigating Officer must satisfy the criteria that in his belief and on the basis of material collected by him/previous IO during the investigation, he is of the opinion that the proposed warrantee is involved in the case as an accused. Only a strong suspicion or information of secret informer may not be treated as a ground for issuance of warrant of arrest. No warrant shall be issued against proposed warrantee unless the Police Officer has categorically stated in writing that there exists grounds of arrest and such grounds are not only legally admissible but are also sufficient to sustain filing of a charge sheet against him in the Court. Investigating Officer must show that in his opinion custodial interrogation of the proposed warrantee is necessary for the just and fair investigation of the offence(s) in question. The Magistrate must record his satisfaction in respect of the fact prima facie involvement of proposed warrantee, requirement of his custodial interrogation and that he is evading his arrest The Magistrate than can exercise his powers to issue warrant of arrest even at the stage of investigation in cognizable & non-bailable offences. Such prayers shall be endorsed by the SHOs and Asstt. P.P./Addl. P.P./Chief P.P. of the Court as well with a declaration that they are satisfied that it is a fit case for issuance of NBW. Such prayers shall be endorsed by the SHOs and Asstt. P.P./Addl. P.P./Chief P.P. of the Court as well with a declaration that they are satisfied that it is a fit case for issuance of NBW. The Investigating Officer shall share the material collected by him during investigation before the Court on the basis of which the accused is connected to the crime. 12. The Gujrat High Court in Criminal Revision No. 535 of 2016, Jaisukh @ Jayesh Muljibhai Ranparia vs. State of Gujrat in judgement dated 20.10.2016 also held 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. This is settled law that Magistrate or criminal courts are not to interfere in process of investigation carried out by the police in performance of its statutory duty. However, the monitoring of process of investigation by Magistrate has not been prohibited under law rather it is recognized by reasoned judgement of Hon'ble Apex Court in Sakiri Vasu (supra), wherein, such power has been read with section 156(3) of Cr.P.C.; this reflects the role of Magistrate during investigation and recognition of his social function; his meaningful indulgence in the investigation is desirable. At the same time the Apex Court has sent a caution that a Magistrate ought not investigate the case himself. However, Magistrate is empowered to monitor the investigation with a view to ensure that there is free and fair trial. The Malimath Committee has also recommended that a provision may be added under Section 311 Cr.P.C. empowering the Magistrate to issue direction to the police regarding investigation to I.O. 13. In present case, learned Magistrate in a very cryptic and cursory manner rejected the application moved by the petitioner without considering the settled proposition of law. 14. According to the petitioner, NBW was issued to absconding accused Waseem @ Gabbar by same court on 13.10.2022 and even after lapse of four months, accused could not be apprehended. In present case, learned Magistrate in a very cryptic and cursory manner rejected the application moved by the petitioner without considering the settled proposition of law. 14. According to the petitioner, NBW was issued to absconding accused Waseem @ Gabbar by same court on 13.10.2022 and even after lapse of four months, accused could not be apprehended. If the learned Magistrate or criminal courts issued warrant of arrest against the accused then it is duty for the court to seek whereabouts of said warrant as to what action has been taken by the police to serve the warrant upon the absconding accused whether he has absconded or evading arrest and in that case; whether process under Section 82 Cr.P.C. is desirable against him or not. He can also direct the I.O. to produce case diary for that purpose. 15. It is true that court cannot issue coercive process on its own during course of investigation to compel or direct the police to arrest an accused or on direct issuance of the process under Section 82/83 Cr.P.C. against the accused without involvement of the I.O. and complying necessary legal formalities as provided under chapter 6C of the code, yet Magistrate can monitor the investigation and seek a report from the police as stated above; otherwise norms of fair investigation will be jeopardized it is also likely to delay the trial of the case of the co-accused persons, who have already been chargesheeted. Therefore, in the light of foregoing discussions, the impugned order is not sustainable and liable to be set aside. 16. The present writ petition is allowed. The impugned order dated 3.3.2023 passed by C.J.M., Prayagraj is set aside. 17. The court is directed to decide the application moved by the petitioner on 3.3.2023 afresh after giving opportunity of hearing to the informant as well as other stakeholders, at the earliest in the light of observations made hereinabove.