CRIMINAL WRIT No.1288 OF 2010 In the matter of an application under Article 226 and 227 of the Constitution of India. 1. PRIYANKA KUMARI WIFE OF SRI SANJAY KUMAR RESIDENT OF SHANTILOK APARTMENT, SHEIKHPURA P.S. SHASTRI NAGAR, DISTRICT – PATNA 2. BALMIKI SINGH SON OF LATE RAMAVTAR PRASAD RESIDENT OF VILLAGE – SHIV MANDIR, GALI SHEIKHPURA P.S. HAWAI ADDA, DISTRICT – PATNA Versus 1. THE STATE OF BIHAR THROUGH VIGILANCE INVESTIGATION BUREAU, BIHAR (PATNA) 2. ADDITIONAL DIRECTOR GENERAL OF POLICE, DEPARTMENT OF VIGILANCE INVESTIGATION, BUREAU, 6, CIRCULAR ROAD, PATNA. 3. THE INSPECTOR GENERAL OF POLICE DEPARTMENT OF VIGILANCE INVESTIGATION, BUREAU 6, CIRCULAR ROAD, PATNA. 4. THE SUPERINTENDENT OF POLICE-CUM- THANA ADHYAKSHA, VIGILANCE INVESTIGATION BUREAU, 6, CIRCULAR ROAD, PATNA. 5. SRI SHEKHAR KUMAR DY. S.P.-CUJM- THE INVESTIGATION OFFICER, VIGILANCE INVESTIGATION BUREAU,6, CIRCULARROAD, PATNA ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K. Sinha, J Heard learned counsel for the petitioners and the State as also Mr. Bhibhuti Prasad Pandey, Senior Advocate appearing as Amicus Curiae. The petitioners pray for issuance of a writ in the nature of certiorari quashing the impugned order dated 18.11.2010 as contained in Annexure- 1 in Special Case No. 62 of 2 2009 arising out of Vigilance Police Station Case No. 86 of 2009 pending in the court of Special Judge – I, Patna whereby warrant of arrest has been issued during investigation of the above case. Petitioners assail the impugned order on the ground that the same has been passed in violation of the provisions of Section 73 (1) of the Code of Criminal Procedure (hereinafter referred to as the “Code”) on the written requisition of the Investigating Officer of the said case as mentioned in the impugned order. The contention of the petitioners is that the warrant of arrest in law could not have been issued during the investigation of the case. Besides the above, it was also submitted that warrant of arrest, more so non-bailable warrant of arrest, could not be issued in absence of valid justification and that too without proper scrutiny of the facts and circumstances of the case justifying such issuance of warrant of arrest. In its support, reliance is placed upon a decision of the Apex Court in the case of Indar Mohan Goswami and another Versus State of Uttaranchal and others reported in 2008 (1) PLJR, 1982 (SC) as also decision of this court in the case of Nalini Kant Agarwal versus State of Bihar and others reported in 2003 (1) PLJR 350 and also in the case of Krishna Murari Yadav Versus State of Bihar reported in 2005 (3) PLJR 746. Learned counsel appearing on behalf of the State opposes the prayer of the petitioners and supports the impugned order. 3 The short facts relevant to the case of the petitioners are to the effect that they have been made accused during the investigation of the aforesaid Vigilance P.S Case no. 86 of 2009, which gave rise to Special Case No. 62 of 2009 for the offences under Sections 13(2) read with Section 13(1) (d) (c) of the Prevention of Corruption Act, 1988. The FIR named accused Sanjay Kumar, is the husband of petitioners no. 1 and son in law of petitioner no. 2. The allegation in sub and substance against the FIR named accused of acquiring movable and immovable properties including cash of Rs. 75, 53,981/- during his service while acting as Excise Superintendent. The allegations against the petitioners appears to be of helping the FIR named accused Sanjay Kumar in concealing his illegal income as indicated in the letter no. 4645 dated 16.11.2010, submitted by Senior Deputy Superintendent of Police cum Investigating Officer Vigilance of the aforesaid case which is the basis of the impugned order for issuing warrant of arrest. Mr. Bhibhuti Prasad Pandey, learned Senior Counsel appearing as Amicus Curiae submits that on perusal of the provisions of Sections 73, 82 and 83 of the Code, it would appear that even though the warrant of arrest could be issued during the investigation, no such order can be passed in a mechanical manner without application of judicial mind and in the absence of fulfillment of the conditions mentioned in Sub- section –(1) of Section 73 of the Code. Mr. Pandey in support of 4 his submission relied upon a decision of the Supreme Court in the case of State through CBI Versus Dawed Ibrahim Keshkar and others as reported in AIR 1997 Supreme Court 2494. The point for consideration in the case is regarding the powers of the court to issue a warrant of arrest as also the conditions requisites for issuance of such warrant of arrest. Before considering the matter in issue, it would be fruitful to quote the relevant provisions of Chapter VI and XII of the Code. CHAPTER - VI Section 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 of 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 5 case, unless security is taken under Section 71. Section 82 (1) Proclamation for person absconding -(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. Section 83 (1) Attachment of property of person absconding – (1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, moveable, or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued, - (a) is about to dispose of whole or any part of his property, or (b) is about to remove the whole or any part of his property from 6 the local jurisdiction of the court, it may order the attachment simultaneously with the issue of the proclamation. Section 90 Provisions of this Chapter generally applicable to summonses and warrants of arrest. - The provisions contained in this Chapter relating to a summons and warrant, and their issue, service and execution, shall , so far as may be, apply to every summons and every warrant of arrest issued under this Code. CHAPTER - XII Section 155 Information as to non- cognizable cases and investigation of such cases – (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an 7 officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable. Section 157 Procedure for investigation - (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that (a) xxxxxxxx (b) xxxxxxxx On perusal of the aforesaid provisions and on its conjoint reading, it would appear that in a given circumstances the 8 court is empowered to issue warrant of arrest/non-bailable warrant of arrest pending investigation of the case, however, before passing such order for issuance of warrant of arrest, it is manifest in law that order can be passed only after considering the justification for issuance of warrant of arrest and also after considering the requisite preconditions mentioned in sub section (1) of Section 73 of the Code which mandates that the Magistrate may issue warrant of arrest 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. In the other words, either of the above three conditions must be available in the case before passing of orders for issuance of warrant of arrest as it involves curtailment of personal liberty of a citizen guaranteed under Constitution of India. Besides the above, the observations of the apex court in the case of State through CBI Versus Dawed Ibrahim Keshkar (Supra) and others reported in AIR 1997 Supreme Court 2494. Paragraphs – 20, 21 and 22 which are complete answer to the issue in question are quoted herein below. Paragraph – 20 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 9 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 upon 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 powers under Section 73, for the person to be apprehended is “accused of a non-bailable offence and is evading arrest”. Paragraph 21 Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part „C „ of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a court only in respect of a person against whom a warrant has been 10 issued by it. In other words, unless the court issues a warrant the provisions of section 82, and the other sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it 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 8 (3) in case the person is accused of an offence under TADA) Paragraph 22 Lastly, we may refer to Section 90, which appears in part „D‟ of Chapter VI of the Code and expressly states that provisions contained in the Chapter relating to a summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summons and every warrants of arrest issued under the Code. Therefore, when a Court issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter VI. Now coming to the facts of the instant case, it would appear that for issue of warrant of arrest of the impugned order as contained in Annexure- 1, the basis is the letter/requisition of the investigating officer vide letter no. 4645 dated 16.11.2010 Annexure - 4 of the Supplementary affidavit referred to in the impugned order. On perusal of the impugned order, it would 11 appear that while referring to the aforesaid letter whereby in course of investigation on the direction of the higher police official petitioner were added as accused since they were allegedly conspiring to manipulate the illegal income and property of the named accused as his legal income. In other words, they were helping the named accused in concealing his illegal income mentioned in the requisition for issuance of warrant of arrest. The impugned order does not disclose as to whether the court below before passing such order had applied its judicial mind to the facts and circumstances of the case for issuance of warrant of arrest and also as to whether any of the necessary pre-conditions as mentioned in sub section 1 of Section 73 of the Code is attracted in the case. In absence of such consideration material on the record and the impugned order could not be sustained in law. In view of the discussions and the law settled as referred to the above, the impugned order dated 18.11.2010 issuing non-bailable warrant of arrest against the above petitioners in Special Case No. 62 of 2009 pending in the court of Special Judge, Vigilance – 1, Patna as contained in Annexure- 1 being unsustainable in law is accordingly quashed. It is however made clear that quashing of the impugned order shall not preclude the court below from passing fresh orders after considering the relevant material and application of judicial mind in accordance with law as discussed above. The writ application is accordingly, allowed. No cost. 12 Patna High Court The 17th March, 2011 A.F.R/Jagdish ( Shailesh Kumar Sinha, J.)