Karan vs State Of U.P. And Another
2018 Latest Caselaw 850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.5.2018 
 
Delivered on 24.5.2018
 

 
In Chamber
 

 
Case :- APPLICATION U/S 482 No. - 8918 of 2018
 
Applicant :- Karan
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Ajay Sengar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard the learned counsel for the applicant Ms. Divya Ojha, Advocate holding brief Shri Ajay Sengar, Sri Sudhir Kumar Pathak, learned AGA and perused the record.

2. This application under sections 482 of the Criminal Procedure Code has been moved seeking quashing of order dated 05/03/2015 passed by learned chief Judicial Magistrate, Orai, District Jalaun on in case crime No. 0013 of 2018 under sections 73 of the Criminal Procedure Code, police station, Jalaun, whereby NBW has been issued against the applicant.

3. As per prosecution version the applicant is a farmer having no connection with any illegal activities. One Madho Singh has lodged an F.I.R. dated 24/01/2018 alleging that on 23/1/2018 he and his brothers, Annu, Mangal Singh and Anupam were grazing animals in their field, right then, the applicant with his associates came there armed with weapons and started abusing him. On exhortation of accused Ram Sharan, all the accused started making indiscriminate firing upon the complainant side, consequently nephew of the complainant, Anupam sustained injury on his head and Sudhir alias Appu sustained injuries in his leg and both of them fell down and later on with the help of villagers they were hospitalised where Anupam succumbed to his injuries. The case was registered as Crime No. 0013 of 2018 under sections 147, 148, 149, 307, 302, 504, and 506 IPC at PS Kotwali - Kalpi

4. The contention of the learned counsel for the applicant is that the aforesaid offences were already cognizable and non-bailable, hence soon after the lodging of F.I.R., the investigating officer had arrested three accused without obtaining any warrants from court and proceeded with further investigation. Thereafter on 28/02/2018 the investigating officer moved an application before the learned Chief Judicial Magistrate, Orai seeking issuance of NBW under sections 73 of the Criminal Procedure Code against the accused applicant, whereon without any speaking order, the said Magistrate issued NBW against the applicant vide order dated 05/03/2018 which is impugned here. He further argued that the investigating officer had not submitted the charge- sheet as yet nor final report under sections 173 (2) Cr.P.C. before the learned CJM and the investigation being still pending, therefore the learned Magistrate had no jurisdiction to issue NBW against the applicant. The applicant was named in the F.I.R., however there was no allegation against him as he had not made any fire nor did he commit murder of the deceased and only with a view to blackmailing him he has been made accused in the F.I.R. The learned Magistrate has power to issue warrant under sections 73 of the Criminal Procedure Code during investigation also but such power can be exercised for appearance in the court only and not for the aid of police in investigation. Therefore the impugned order deserves to be quashed.

5. The learned counsel for the applicant has placed reliance upon the law laid down in State through CBI vs. Dawood Ibrahim Kaskar and others, (2000) 10 Supreme Court Cases 438 to prove the point that no NBW can be issued during investigation of a criminal case for production of the accused before the police in aid of investigation.

6. Perused the impugned order. The Chief Judicial Magistrate, Jalaun at Orai has passed an order in Case Crime No. 13/80 under sections 147, 148, 149, 302, 377, 504 and 506 IPC PS, Kalpi, District Jalaun on 05/03/2013 that the investigating officer of the aforesaid case, Sanjay Kumar Gupta had moved an application in the afore-mentioned case crime number praying that NBW be issued against accused persons namely, Ram Sharan, Ram Swaroop, Kripa Ram, Babu Singh, Sundar Kotedar, Harnam, Jaigopal, Pradhan Akilesh, Karan (applicant), Lal Singh and Santosh. As per the report none of these accused was detained in jail and according to the report of the court clerk, no charge sheet had been submitted against them nor any stay order had been received from High Court. It was submitted in the application by the investigating officer that the accused were evading arrest and despite raid being conducted, they could not be arrested. It is mentioned in the said order by the learned Magistrate that after having seen the papers it was found that these accused had not surrendered before court nor could they be arrested, hence he found this to be a fit case where NBW could be issued against them and accordingly NBWs were directed to be issued against them and after compliance of the said process, report was directed to be submitted before court.

7. A thorough study has been made of the judgment relied upon by the learned counsel for the applicant and this court finds that the applicant does not get any help from this ruling, reason being that as is evident from the impugned order itself, the NBWs have been directed to be issued against the applicant as well as other co-accused who were evading arrest despite being wanted in the afore-mentioned case and effort having come a cropper of police to arrest them, to appear before court, as a report was directed to be submitted by police before court. Nowhere has it been mentioned in the impugned order that the police/investigating officer had required their presence before it for the purposes of investigation. It could be possible that the police after having made investigation was unable to file charge- sheet because of these accused absconding, as it is bounden duty of police to file charge sheet before court after arrest of the accused and in case the same is not possible despite coercive steps of NBW, process under sections 82/83 Cr. P.C. having been exhausted, the same would be filed in abscondance of the accused. There is no gainsaying the fact that the process under sections 82 Cr. P.C. could only be issued by the Magistrate after issuance of NBW and after expiry of one month of issuance of process under sections 82 Cr.P.C. and thereafter only the process under section 83 Cr. P.C. is issued. It is also evident that soon after the arrest, under sections 167 Cr. P.C., the police was bound to produce them before court within 24 hours of their arrest which is the mandate of law. Therefore the contention of the learned counsel for the applicant that the C.J.M. was not empowered to direct issuance of NBW of an accused to be brought before investigating officer in aid of investigation prima facie appears to be wrong in the present situation.

8. The Apex court undoubtedly in Kaskar's case (supra) while dealing with issue as to when and under what circumstances the court can invoke the provisions of sections 73 of Cr. P.C. has considered the point as to whether the court can issue a warrant to apprehend a person during investigation for his production before police in aid of investigating agency. While dealing with the issue and the point, the Apex court considered the decision of the Division Bench of Bombay High Court in Mohd. Ahmad Yaseen Mansuri vs State of Maharastra reported in 1994 Cr LJ 1984 (Bombay), in which it was held that the designated court would not have issued warrants in aid of investigation and could have issued the same only by way of process issued under sections 204 of the Code. It was held that issuance of warrant after cognizance of an offence is taken would be a process contemplated under sections 204 (1) (b) of the Code, i.e., it would be a process to face trial and there is no provision in the court for issuance of warrant of arrest and custody of accused for the purpose of, or in aid of, investigation and the process contemplated is a process to face trial. After taking note of the said decision of the Division Bench of Bombay High Court and scanning through the provisions under Chapter VI of the Code, the Apex court recorded rival contentions which are sought to be raised by the counsel appearing in the matter. The contention which was sought to be raised on behalf of the State was that though in exercise of its power under sections 41 of the Code a police officer may without an order from a Magistrate and without a warrant, arrest a person who is concerned in a cognizable offence or against whom a reasonable complaint has been made, or a credible information has been received or a reasonable suspicion exists, of his having been so concerned, under the Code the police has no power of its own to compel his appearance if he evades the arrest. It is in that context, the court has been given a power under sections 73 to issue warrant of arrest for apprehension of such a person. The said contention was sought to be countered by the learned counsel appointed as Amicus Curiae urging that the scheme of the Code is that the police has complete control of the investigation and is not aided by any judicial authority and when investigation culminates in the police report under sections 173 (2) that the court steps in by taking cognizance thereupon and issuing summons or warrant under sections 204 against the person arraigned and therefore, while investigating under Chapter XII the police is not entitled to seek the help of the Magistrate for purposes of issuing of a warrant of arrest in aid of investigation. The Apex court referring to sections 73 of the Code held that "sections 73 confers 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 the section a police officer can investigate into a non-cognizable offence with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in cognizable case, except that he cannot arrest without warrant. If with the order of the Magistrate the police started investigation into a non-cognizable and non-bailable offence, (like sections 466 or 467 (part 1) of the Indian penal Code) and 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 evades the arrest, the only course left open to the investigating officer to ensure his presence would be to ask the Magistrate to invoke his powers under sections 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise powers under sections 73, for the person to be apprehended as "accused of a non-bailable offence and is evading arrest". The attention may also to be paid to the paragraph in which it is mentioned "since warrant is and can be issued for appearance before the court only and not before the police and since authorisation 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, Mr. Desai was not absolutely right in his submission that warrant of arrest under sections 73 of the Code could be issued by court solely for the production of the accused before the police in aid of investigation." In light of above observation of the Apex court it would be pertinent to mention here that the learned counsel for the applicant has not produced before this court the warrant issued by the court/C.J.M. which would indicate that it contained a direction to the accused persons/applicant to appear before the investigating officer. In view of such lack of information it could not be held that the warrant which has been directed to be issued by the C.J.M. called upon the accused to appear before the investigating officer in aid of investigation. Rather it appears from the tenor of the order that it called upon the investigating officer to submit report before court after execution of the warrant, which would certainly amount to production of accused before court/C.J.M. and at that stage the C.J.M. would be dealing with them under the provisions of sections 167 Cr. P.C.. Therefore the ruling of the Apex court in Kaskar's case rather than assisting the petitioner clearly justifies the order passed by the C.J.M. issuing warrant against the applicant accused.

9. In the opinion of this court, it seems illogical to contend that Magistrate or courts below are powerless to issue a warrant at the stage of investigation. Undoubtedly on issuing such a warrant, the production of such accused/person would be before the concerned court and not before the investigating officer and on such production, the court shall deal with the person in accordance with the provisions of law comprised under sections 167 of Cr. P.C.. In fact the decision of the Apex court in Kaskar's case in that regard is very clear wherein it has been ruled that "on such production, the court may either release him on bail under sections 439 for authorise his detention in custody (either police all judicial) under sections 167 of the Code".

10. It is apparent that there is no express provision in the Criminal Procedure Code authorising any Magistrate to order the arrest of any person, who, he thinks, is guilty of the commission of a cognizable or non-cognizable offence unless he has taken cognizance of the case himself. But under sections 167 Cr. P.C., the Magistrate has to decide whether he would remand the accused to the custody of police and, even if he has no jurisdiction to try the case, he can in a suitable case remand the accused to police custody for a maximum period of 15 days. It would be anomalous if the Magistrate had the power to remand the police custody for 15 days but would not have the power to get a person arrested by issuing NBW whom he believes to be guilty of a non-bailable and cognizable offence. It would further be anomalous that a police officer may have power to arrest a person who is reasonably suspected of having committed a cognizable offence, but the Magistrate would have no such power. The very fact that a police officer may arrest without warrant from a Magistrate under section 54 Cr.P.C. would imply that the Magistrate may issue a warrant even at the stage of Section 54 of Cr. P.C.

11. In view of above analysis, this court finds that there is no infirmity in the impugned order and it is held that the impugned order was passed by the C.J.M. directing issuance of NBW against the accused applicant along with others for their production before him after the arrest, whereafter he would be well within his right to deal with them under sections 167 of Cr. P.C.. Moreover, the learned counsel for the applicant has failed to bring on record the fact that the NBW issued pursuant to the impugned order directed the applicant to appear before the investigating officer in aid of investigation of the case, hence the above ruling relied upon by him does not provide any help to the applicant in present situation.

12. The application under section 482 Cr. P.C. deserves to be dismissed and is accordingly dismissed.

Order Date :- 18.5.2018

A.P. Pandey