The Madras High Court has in recent development to Thirumangalam Entrepreneur Extortion Case, reflected on the scope of Section 73 CrPC and directed the Magistrate to issue non-bailable warrant into investigation.
The single-judge bench of Justice A.D. Jagadish Chandira has asked the Magistrate to issue NBWs in oder to nab the accused Police Officials absconding arrest.
The accused along with the certain Police Officials including the respondents kidnapped the de facto complainant and under threat, the main accused with the help of certain Police officials had committed grave offence of extortion and illegally transferred the property belonging to the defacto complainant.
In the present petition, DSP has challenged before the High Court, the Magistrate order refusing to issue non-bailable warrants against them.
The Court noted that despite earnest steps taken by the petitioner to bring the accused for investigation, they have not complied with the Notice issued under Section 41(a) Cr.P.C, and rather have instigated their family members to file a complaint against the Officer before the Human Rights Commission.
Noting that the respondents, who belong to uniform service, were supposed to obey the Law and are evading investigation, the Court analysed the impugned order by the Magistrate.
The petitioner has submitted that Section 73 of Cr.P.C. confers the power upon the Magistrate to issue warrant and it can be exercised by him during the stage of investigation also, whereas the learned Magistrate, without properly understanding the provisions, by a cryptic order, had returned the Application even without numbering the same.
He further averred that if an accused evades arrest the only course left to the Investigating Officer to ensure his presence would be to seek the learned Magistrate to invoke his power under Section 73 of Cr.P.C. and only thereafter, the Investigating Officer can proceed further relating to proclamation and attachment.
Contending that the Magistrate is empowered to legitimately exercise his powers under Section 73 of Cr.P.C. for the apprehension of the accused during investigation and in this case, the petitioner argued the respondents are facing charges for offences of cognizable in nature which are Non-Bailable. The Learned APP relied on SC decision in State Through Cbi Vs. Dawood Ibrahim Kaskar & Ors , 1997 Latest Caselaw 445 SC
The Court disagreed with Magistrate's view in the impugned order that "The said specific provision is for issuing warrant to the pending cases, not for issuing warrant to investigation"..
Referring to Cbi Vs. Dawood Ibrahim wherein the Supreme Court has held that Section 73 of Cr.P.C. confers the power upon the Magistrate to issue the warrant and that it can be exercised by him during the investigation also, the Court allowed the appeal.
"the accused in the case are evading arrest and the only course left open to the Investigating Officer to ensure their presence, would be to seek the Magistrate to invoke his power under Section 73 of Cr.P.C. and only thereafter can proceed with the other procedures of proclamation and attachment. In such an eventuality, there is no bar for the Magistrate to legitimately exercise his power under Section 73 of Cr.P.C for the person to be apprehended during investigation since the respondents are accused of Non-Bailable offence and are evading arrest."
The imugned order was accordingly set aside.
Read Judgement Here:
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