In The High Court Of Judicature At Patna Cr. Wjc No.313 Of 2008 Randhir Sharma @ Rupesh Son Of Ram Shreshtha Ray, resident of Village Rambagh, Near College, P.S. Sadar, District Purnea … Petitioner Versus 1. State Of Bihar 2. The Director General of Police, Old Secretariat, Patna 3. The Inspector General of Police, Purnia Commissionary Range,Purnia 4. The Superintendent of Police, Katihar 5. The Sub-Divisional Police Officer, Katihar 6. The Officer in-charge of (Sahayak) P.S. Mirchaibari, Katihar 7. The Investigating Officer of Sahayak, P.S. Case No.271/07 District Katihar …Respondents ----------- For the Petitioner : Mr.Sunil Kumar Pathak, Advocate For the State : Mr.Satyeshwar Prasad, AC to SC 19 2 30.1.2009 Heard counsel for the petitioner and the State. In the instant writ petition the petitioner prays for quashing the order dated 25.6.2007 and 7.7.2007 passed by the Chief Judicial Magistrate, Katihar in connection with Nagar (Sahayak) P.S. Case No.271 of 2007 under sections 302, 307/34 of the Penal Code by which he has issued warrant of arrest under section 73 of Cr.P.C. against the petitioner and other accused persons as well as order of proclamation and attachment under sections 82 and 83 Cr.P.C. At the outset I would like to point out that as order dated 7.7.2007 is not directed against the petitioner, as such this court refrains to go into the issue whether the order passed by the learned Magistrate issuing proclamation under section 82 and attachment under section 83 Cr.P.C. is in accordance with law or not. The informant stated in his F.I.R. that in the evening of 17.6.2007 at about 7 P.M., the accused persons including the petitioner - 2 - shot his brother dead near G.R.P. Chowk, Katihar. Learned counsel for the petitioner assails the impugned order dated 25.6.2007 directing the issuance of warrant against him on the following grounds: (a) The prayer for issuance of warrant has been made within five days of registration of aforesaid case and thus the same was in utter haste (b) Warrant cannot be issued in aid of investigation (c) Police did not make attempt to arrest him at his correct address and as such it cannot be said that the petitioner was evading arrest. (d) In course of investigation some doubt had cropped up regarding the authenticity of the version of the informant. Learned counsel for the petitioner in support of his contention relied upon decisions of this court in the case of Nalini Kant Agrawal & anr Vs State of Bihar & Ors, reported in 2003(1) P.L.J.R.350 and that of Krishna Murari Yadav Vs State of Bihar, in 2005 (3) P.L.J.R.746. The State counsel on the other hand submitted that the warrant was prayed not solely in aid of investigation. He further submits that requisition was filed as the petitioner appeared accused in a non-bailable case and was evading arrest. He also submits that section 73 Cr.P.C. does not bar issuance of warrant of arrest even during the investigation. He relied upon a decision of this court in the case of Tarkeshwar Singh Vs State of Bihar, 2007 (2) P.L.J.R. 136. - 3 - As the issues involved in this case has been raised and considered in the judgments referred to above, this court would like to discuss the aforesaid cases in brief at the first instance. In the case of Krishna Murari Yadav (supra) this court was considering a challenge to the order dated 28.7.2005 by which warrant of arrest has been issued against the petitioner within three days of the occurrence and even the order of proclamation and attachment was conjointly made on 4.8.2005. In the aforesaid case, the informant received telephonic message regarding attack on his brother Ashok Kumar Yadav, the Chairman of Bihar State Water Board by unknown miscreants, while he was holding a meeting. The informant suspected the hands of the petitioner Krishna Murari Yadav and others in the murder of his brother. There was no concrete report before the police except for mere suspicion. It would be apt to quote paragraph 14 of the judgment. “14. From the facts, revealed, it is indicated that the Investigating Officer has filed an application for issuance of warrant, in haste just three days after the institution of the police case, at the stage when the petitioner cannot be considered as absconder offender as neither there was sufficient evidence to warrant his trial, nor the charge sheet or final form has been submitted on completion of police investigation. Since the petitioner cannot be treated as an absconder as such filing of an application for issuance of warrant of arrest as provided under Rule 286 of the Police Manual was also uncalled for. On filing of such an application the C.J.M. without judicially considering the material before him has passed an order for issuing non-bailable - 4 - warrant of arrest against the petitioner and other accused persons. In the margin of the petition, filed by the Investigating Officer, the Chief Judicial Magistrate passed the order, directing issuance of warrant in clear violation of Rule 238 of Civil Court Rules, the order- sheet shall be written in English and shall contain all orders passed by the Court. Orders shall not be written on petitions, reports and other similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition.” This court relying upon a decision in the case of State Vs Daud Ibrahim, reported in 1997 SC 2492 further observed that warrant of arrest cannot be issued on an application of police in aid of investigation. In the facts of the case, it was held that requisition as well as the order of the Chief Judicial Magistrate issuing warrant of arrest was illegal and contrary to law. In the case of Nalini Kant Agrawal (supra) this court observed that a Magistrate has jurisdiction to issue warrant under section 73 Cr.P.C., against persons who are detailed in section 73 and the court records a finding that they are evading arrest. It was further observed that warrant of arrest under section 73 Cr.P.C. could not be issued by the court solely for the production of the accused before the police in aid of investigation. Learned Judge also noticed that the requisition filed by the police no where stated that the accused persons were evading arrest and as such the application of the police was in complete and defective. The court as such set aside the order issuing warrant of arrest as the Magistrate passed the order without - 5 - considering the totality of circumstances. The State has relied upon a decision rendered in the case of Tarkeshwar Singh (supra) wherein this court observed that section 73 Cr.P.C. is of general application and a Magistrate has ample power to issue warrant of arrest against a person who is accused of non-bailable offence and is evading arrest. In the aforesaid case the Chief Judicial Magistrate, Chapra vide order dated 28.8.2006 had directed issuance of warrant against Tarkeshwar Singh, who was accused in a non-bailable case under section 302 of the Penal Code. The F.I.R. was instituted on 6.3.2006 under section 302 of the Penal Code, in which Tarkeshwar Singh was named as accused. On 28.8.2006 the police filed requisition for issuance of warrant on the ground that he is named accused in a non- bailable case and is evading arrest. On such requisition the Magistrate directed for issuance of warrant under section 73 Cr.P.C. The petitioner Tarkeshwar Singh relied upon decision in the case of Daud Ibrahim as well as Krishna Murari Yadav (supra) stating therein that police cannot pray for issuance of warrant of arrest in aid of investigation. This court in the facts and circumstances of the aforesaid case held that neither the requisition filed by the Police nor the order of the court would show that the same were made for arrest of the accused in aid of investigation. Learned Single Judge relying upon paragraph 23 of the judgment of the Apex Court in the case of Daud Ibrahim (supra) observed that the court can issue warrant of arrest - 6 - against the person who is an accused of non-bailable offence and is evading arrest even during investigation. The issues involved in this case are as follows: i) Whether pending investigation warrant of arrest can be issued against the person who is an accused of non-bailable offence and is evading arrest? ii) Whether in the facts of the instant case it can be said that the requisition filed by the police and the order passed by learned Magistrate for arrest of an accused was in aid of investigation? iii) Whether the impugned order satisfied the requirement of law necessary for passing an order under section 73 Cr.P.C.? The issue no.(i) is no more res-integra and has been dealt with in paragraph 23 of the judgment rendered in the case of Daud Ibrahim (supra). It would be useful to quote paragraph 23 of the said judgment. 23. “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, 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 handwritings etc. However, in performing such or similar functions the - 7 - 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 authorize 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. Since warrant is and can be issued for appearance before the Court only and not before the police and since 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, it cannot be said that warrant of arrest could be issued by the Courts solely for the production of the accused before the police in aid of investigation”. Section 73(1) Cr.P.C. provides the circumstances in which the Magistrate can direct for issuance of warrant of arrest. Section 73 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”. From reading of the aforesaid provisions, it would appear that - 8 - warrant of arrest can be issued under the Code in three circumstances. Firstly, for arrest of escaped convict; secondly for arrest of proclaimed offender and thirdly for arrest of any person who is an accused of non- bailable offence and is evading arrest. In the third circumstance, a warrant can be issued even pending investigation as has been held by the Apex Court. The issue no.(i) as such is answered in affirmative. One relevant fact to be noticed here is that under Rule 286 of Police Manual, it is incumbent for the police to file an application without any delay for issuance of warrant in respect of accused against whom criminal charge appears substantiated, have absconded. As per Rule 118(a) a person would be considered to be absconded offender who was charged with cognizable offence and against whom there is evidence sufficient to warrant their trial, as well as persons who are at large, despite submission of charge sheet or final report against them on completion of investigation. Thus warrant is to be issued in the circumstances enumerated under Rule 286 of the Police Manual. So far as issue no. (ii) is concerned, there is nothing on record to show that the police has prayed for issuance of warrant of arrest in aid of investigation. The order of the learned Magistrate would not show that it directed for issuance of warrant for the purpose of production before the police in aid of investigation. As such this court finds that the submission of the petitioner that warrant was issued for the purpose of production of the accused in aid of investigation is - 9 - unfounded and baseless. The Supreme Court in the case of Daud Ibrahim (supra) has held that warrant can be issued only for appearance of the accused before the court pending investigation and not solely for the purposes of production before the police in aid of investigation. If police arrest a person pursuant to issuance of warrant of arrest by court, it cannot detain him in the police custody but has immediately to produce him before the court issuing warrant for passing appropriate order in respect of his bail under section 439 Cr.P.C. or a detention in police or judicial custody in accordance with section 167(3) Cr.P.C. Section 73(3) Cr.P.C. provides for necessary check for conforming to the principle noted above and mandates that person arrested so pursuant to execution of warrant under section 73(1) Cr.P.C. should be produced before the Magistrate forthwith. The warrant of arrest against a person accused of non-bailable offence cannot be granted on mere asking. The requisition to be made by the police in this regard is not an empty formality. The allegation of charging a person of being an accused of non-bailable offence must be apparent from the requisition filed by Police. An order under section 73 Cr.P.C. which is to make an in road into the personal liberty of an individual could not be passed casually but only after taking into consideration the totality of the circumstances, contents of the application and the requirement of law. The requisition filed by the police must disclose that there is evidence to substantiate the allegation that the petitioner is an accused of a non-bailable offence and is evading arrest also at the same time. The court too has to record - 10 - KHAN A.F.R. its satisfaction that there is sufficient allegation against the petitioner of being an accused of non-bailable and is evading arrest also at the same time. So far as issue no.(iii) is concerned, it would appear that in the instant case the learned Magistrate on mere requisition filed by the police has ordered for issuance of warrant of arrest against the petitioner within five days of the institution of the case. It would appear from the impugned order that the learned Magistrate has passed the order in a mechanical manner without applying his judicial mind to the conditions necessary for passing an order under section 73 Cr.P.C. without recording his satisfaction. The order neither reflect that the Magistrate was satisfied that the petitioner was evading arrest nor his satisfaction that material gathered in course of investigation disclosed a non-bailable offence against him. In view of the aforesaid discussions, the impugned order dated 25.6.2007 passed by the Chief Judicial Magistrate, Katihar in Nagar (Sahayak) P.S. Case No.271/07 is not sustainable in eye of law and as such the same is set aside. It will be open to the prosecuting agency to file fresh application in accordance with law. (S.P.Singh,J) - 11 -