IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.634 of 2009 UPENDRA KUMAR, s/o Sri Krishna Mahto, r/o mohalla Gola Road near St. Karens School, P.S. Danapur (now Rupaspur), District- Patna. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. Sri. R.K. Chauhan, Regional Director, D.A.V. Public Schools, Patna Zone, Patna, Arya Samaj Mandir, New Bailey Road, Danapur, Patna. 3. The I.O. of Khagaul P.S. case no. 29 of 2009, Distt. Patna. . . . . Respondents. ----------- 7/ 16.08.2010 Heard learned counsel for the petitioner and the State. In the instant writ application, the petitioner has prayed for quashing the order dated 13.04.2009, as contained in Annexure-4, passed by Additional Chief Judicial Magistrate, Danapur in Khagaul P.S. case no. 29 of 2009, bearing G.R. No. 634 of 2009, whereby warrant of arrest has been issued against the petitioner, on the basis of requisition submitted by Officer-in-charge, Khagaul police station on 09.04.2009, as contained in Annexure-3. The informant, Regional Director, D.A.V. Public Schools, gave written complaint on 14.03.2009 to Khagaul police station giving rise to Khagaul P.S. case no. 29 of 2009, dated 14.03.2009 under Sections 420, 408, 467, 468, 471 and 120 B of the Indian Penal Code. He alleged that the Trust and Managing Society of D.A.V. College has been defrauded, cheated of an amount of Rs. 4,20,90,953/- (Four crore twenty lakh ninety thousand nine hundred fifty three) by Upendra Kumar (petitioner) along with Arbind Kumar in land Dih of Village Mustafapur for extension of D.A.V., Public School, Cant Road, Khagaul and D.A.V. Public School, Shashtrinagar. The petitioner states that he has been falsely implicated in - 2 - this case at the behest of vested interest. He further submits that needle of suspicion also points towards the informant. The petitioner submits that the First Information Report was instituted on 14.03.2010 and just after 20 days i.e. on 04.04.2009, the police filed requisition for issuance of warrant of arrest against the petitioner and others. Copy of requisition dated 04.04.2009 has been appended as Annexure-3. Learned counsel further submits that on 04.04.2009, learned Magistrate issued warrant of arrest against the petitioner and others. The petitioner submits that the requisition for warrant of arrest against the petitioner is not in accordance with law. He submits that police nowhere stated in the requisition that petitioner is evading arrest, which is sine qua non for issuance of warrant under Section 73 of the Cr.P.C. by the Magistrate. He further submits that police cannot pray for issuance of warrant of arrest in aid of investigation. In support of his submissions, learned counsel for the petitioner has relied upon decisions in case of Krishna Murari Yadav Vs. State of Bihar, reported in 2005(3) PLJR 746, Nalini Kant Agrawal & Anr. Vs. State of Bihar & Ors, reported in 2003(1) PLJR 350, reported in case of Randhir Sharma @ Rupesh Vs. State of Bihar & Ors., reported in 2010 (1) PLJR 350: 2009 (2) BLJ 169 and State through C.B.I. Vs. Dawood Ibrahim Kaskar and others, reported in A.I.R. 1997 SC 2494. In case of Nalini Kant Agrawal and Randhir Sharma @ Rupesh (Supra), this Court held that the requisition must state that person against whom warrant of arrest is being sought is an accused in - 3 - a non-bailable offence and he is evading arrest also. The Court too has to record its satisfaction that there is sufficient allegation against the petitioner and he is an accused of a non-bailable offence and is evading arrest. The informant (respondent no.2) as well as investigating officer (respondent no.3) have filed their counter affidavits. The respondent no.3, the investigating officer in paragraph 3 states that the petitioner in conspiracy with Arbind Kumar and others have cheated the D.A.V. Public School institution of four crores and odd by creating 14 forged sale deeds for purchase of land for D.A.V. Public School, Khagaul and D.A.V. Public School, Shastrinagar. He recorded the statement of various persons and thereafter conducted raid at the residence of the petitioner and one Arbind Kumar, but they eluded. In paragraph 6, it was stated that in spite of attempts taken by him, both Upendra Kumar and Arbind Kumar have not been apprehended. In this respect he refers to paragraph nos. 18 and 55 of the case diary. Thus, requisition was filed for issuance of warrant of arrest against petitioner and Manoj Kumar, who are main accused in this case. The informant, who is respondent no.2, in his counter affidavit reiterated his allegations that petitioner and Arvind Kumar in conspiracy with others, cheated and defalcated a sum of Rs. 4,20,90,953/-. He further submits that the anticipatory bail application of the petitioner was rejected by this Court on 16.04.2010 passed in Cr. Misc. No. 41366 of 2009, and direction was given to surrender - 4 - within four weeks, but the writ petitioner has not surrendered so. Petitioner has also filed an interlocutory application bearing I.A. No. 1467 of 2010 for addition of prayer for quashing the order dated 30.10.2009, for which process under Section82 of Cr.P.C. and also order dated 08.12.2009, for which process under Section 83 of Cr.P.C. has been issued for attachment of the property. Heard counsel for the parties. Section 73 states that the Chief Judicial Magistrate or a Magistrate of 1st Class may issue warrant for arrest of any escape convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. The main issue in this case is whether the requisition for issuance of warrant of arrest by the police (Annexure-3) and issuance of warrant of arrest by learned Magistrate (Annexure-4) is in accordance with law or not. The Hon’ble Apex Court in case of State Vs. Dawood Ibrahim Kaskar (Supra) has dealt with scope of Section 73 of the Cr.P.C. and issuance of warrant of arrest thereof. It would be useful to quote paragraph 23 of the aforesaid judgment, which is reproduced hereinbelow:- 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, 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 - 5 - 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 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”. The Hon’ble Apex Court held that requisition for issuance of warrant of arrest cannot be for the production of the accused in aid of investigation, but for his production before the court. The Hon’ble Supreme Court observed that even during investigation, the Magistrate performs certain role, like holding of T.I. Parade, recording of confession of an accused or statement of witness or witnesses taking of sample etc, which do not involve Judicial discretion. - 6 - However, when an accused is produced pursuant to issuance of warrant of arrest the court may either release the accused under Section 439 of Cr.P.C. or authorize his detention under Section 167(3) of the Cr.P.C. Such warrant can be given only on exercise of judicial discretion, based on materials placed before him. In case of Krishna Murari Yadav (Supra) a suspicion was raised against the petitioner, Krishna Murari Yadav, by the informant, who was not eye witness of the occurrence. The police filed requisition for his arrest within three days. This Court deprecated the filing of such requisition within three days without any substantiation of allegation against him. The Court, as such quashed the order issuance of warrant dated 28.07.2005 and consequent orders of proclamation and attachment. In case of Nalini Kant Agrawal reported in 2003 (1) PLJR page 350, this Court observed that a Magistrate can issue warrant under Section 73 of Cr.P.C. against persons even during investigation provided that they are accused of non-bailable offence and is evading arrest. As the police had not stated in its requisition that accused persons were evading arrest, the application was found to be incomplete and defective and consequently warrant of arrest, issued by the Magistrate was quashed. In case of Randhir Sharma @ Rupesh (Supra) reported in 2010 (1) PLJR 350: 2009 (2) BLJ 169, this Court held that the requisition filed by the police must record a finding that the person against whom warrant is issued is accused in a non-bailable offence - 7 - and is evading arrest. In paragraph 21 of the aforesaid judgment, it was observed as follows:- “21. 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 inroad 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 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”. This Court emphasized if police arrests a person pursuant to issuance of warrant 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. In the instant case, the requisition filed by the police, as contained in Annexure-3, would show that the petitioner is an accused - 8 - in a non-bailable offence. The police in the requisition alleged that the petitioner is involved in criminal conspiracy and has executed false sale deed by presenting fake persons in place of genuine and thus misappropriated a heavy sum. In the requisition, the police has also annexed all gist of materials / memo in respect of the accusations. It is true that he has not specifically stated that he is evading arrest though he has stated in paragraph 6 of the counter affidavit that the petitioner and the co-accused Arbind Kumar are absconding. He has also stated in paragraph 5 of the counter affidavit that despite attempts, both the accused persons could not be apprehended and as such he filed requisition for warrant of arrest. It is relevant to quote paragraph 5 of the counter affidavit filed on behalf of respondent police. “5. That when accused Upendra Kumar and Arbind Kumar could not be apprehended, despite attempts taken by the Investigating officer, on 04.04.2009 requisition for issuance of their warrant of arrest was filed in the court of the learned Additional Chief Judicial Magistrate, Danapur, which would be evident from paragraph 18 and 55 of the case diary.” The learned Magistrate while issuing warrant of arrest in its impugned order has observed that the petitioner and the other accused persons are evading arrest and as such warrant of arrest is being issued against them. It also appears from the supplementary affidavit filed by the petitioner that his anticipatory bail application has been rejected by this Court vide order dated 16.04.2010, passed in Cr. Misc. No. 41336 of 2009. This Court also observed therein that the conduct of the informant and the principals of the school also requires investigation - 9 - by the investigating agency to find out whether they were also part of conspiracy or not. The order of Magistrate issuing warrant under Section 73 of Cr.P.C. show that accused is evading arrest, which is significantly absent in the requisition filed by police though it has tried to show through counter affidavit that they were evading arrest. In this case, a sum of Rs. 4 crores and odd is said to be embezzled by the petitioner and others and also in view of the fact that anticipatory bail application of the petitioner has been rejected four months back with a direction to surrender. This Court strongly deprecates such callousness on part of police, in filing requisition for issuance of warrant of arrest under Section 73 of Cr.P.C., despite clear enunciation of law on the subject in case of Randhir Sharma (Supra) reported in 2010(1) PLJR 350. Normally this Court would have rejected the requisition and consequent issuance of warrant thereof. But in given facts of the case, as the order of Magistrate show that the accused is evading arrests and despite rejection of Anticipatory bail application on 16.04.2010 and direction of surrender, the petitioner has not surrendered, I am not inclined to quash the requisition of warrant and order of warrant of arrest dated 13.04.2009 issued by the Magistrate under Section 73 of Cr.P.C.. So far as addition of prayer challenging the order of proclamation dated 30.10.2009 under Section 82 of the Cr.P.C. and order of attachment dated 08.12.2009 under Section 83 Cr.P.C., contained in I.A. No. 1467 of 2010 is concerned, it would be open to - 10 - the petitioner to challenge the same in separate application. With the aforesaid liberty, this application is disposed of. Let a copy of this order be communicated to learned Director General of Police, Bihar, Patna for needful. Uday/ (Samarendra Pratap Singh, J.)