Allahabad High Court
Devendra Singh vs State Of U.P. & Another on 19 December, 2012
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 41
Case :- APPLICATION U/S 482 No. - 33538 of 2012
Petitioner :- Devendra Singh
Respondent :- State Of U.P. & Another
Petitioner Counsel :- A.C. Srivastava
Respondent Counsel :- Govt. Advocate
Hon'ble Sunil Hali,J.
By means of this application, applicant has question the order dated 10.11.2011 passed by Chief Judicial Magistrate, Ghaziabad in Case No. 9533 of 2011 (State Vs Subhash Yadav), under Sections 307,364, 504,325,323 IPC, P.S. Sahibabad, District Ghaziabad, whereby the non bailable warrants h as been issued against him.
An application was filed by the Investigating Officer, P.S. Sadar Bazar, District Meerut seeking presence of the accused persons. It is stated in the application that applicant is named accused in the FIR but he is not co-operating with the investigation and is absconding. He is evading arrest by hiding at various places. In the application, it is also prayed that proceedings of Section 82/83 Cr.P.C. be also initiated against him.
Heard learned counsel for the parties and perused the material on record.
Section 73 of the Cr.P.C. is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, a person who is accused of a non bailable offence and is evading arrest. However, this power is not to be exercised exclusively for the purpose of seeking presence of the accused before the Investigating Officer. Once any such warrant is issued the Magistrate may either release him on bail or authorise his detention in custody under Section 167 of the Code. Power of the Magistrate is limited in this behalf. However, in order to reach to this stage, it is necessary to secure the presence of the accused and in this behalf warrant can be issued by the Magistrate securing the presence of the accused. In case accused despite non bailable warrants remains absconding then the court has power to proceed under Section 82/83 Cr.P.C.
In the present case, accused according to the application filed by the Investigating Officer is evading arrest and is not participating in the investigation. For seeking his presence and initiating proceedings under Section 82/83 Cr.P.C. the Magistrate is obliged to issue warrant under Section 73 of the Code seeking his presence. However, once his presence is sought it is for the Magistrate to decide on the basis of the material collected against such person to find out whether the accused is to be handed over to the police custody or judicial custody or release him on bail depending upon the facts of each case.
In the present case, that situation is yet to arise as the accused is not participating in the investigation, therefore the Magistrate was well within its right to issue non bailable warrant against the accused person.
In find no force in this application and it is accordingly dismissed.
Order Date :- 19.12.2012
RKS/
