Gujarat High Court
Arvindkumar Narsinhbhai Patel vs State Of Gujarat on 31 August, 2021
Bench: Gita Gopi
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6053 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed --
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy --
of the judgment ?
4 Whether this case involves a substantial question --
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARVINDKUMAR NARSINHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. I.H.SYED, SR. ADVOCATE WITH PRITHU PARIMAL(9025) for the
Applicant(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2021
ORAL JUDGMENT
1. Rule. Learned Public Prosecutor waives service of notice of rule
on behalf of respondent State.
2. On 25.3.2021, an application was moved for issuance of warrant
under Section 70 of Cr.P.C. against Dr. Arvindbhai Narsinhbhai Patel,
Deputy Health Officer, Bodakdev Zone, Ahmedabad Municipal
Corporation towards the offence registered under Section 7 of the
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
Prevention of Corruption Act, 1988 registered at Ahmedabad City
(A.C.B.) Police Station as C.R. No. 9/2020.
3. The complaint dated 3.12.2020 is filed by Dr. Dhawalkumar
Narendrabhai Patel- Deputy medical administrator, CIMS Hospital,
Sola Ahmedabad. The FIR is registered on 4.12.2020 against (i) Dr.
Naresh Malhotra of Aditya Hospital and (ii) Dr. Arvindbhai Narsinhbhai
Patel, Deputy Health Officer- North-East Zone, Ahmedabad Municipal
Corporation, the present petitioner. The offence is stated to have
been committed on 31.7.2020, whereby accused No.1 was arrested on
16.2.2021.
4. The facts of the case suggest that CIMS Hospital by way of
Memorandum of Understanding (MOU) had entered into list of
hospitals for the treatment of COVID-19 patients under reference by
Government. For sanction of bills of the COVID-19 patients, they were
to be produced before the Deputy Municipal Health Officer of the
Municipal Corporation Health Department. Allegations are that for
the sanction of the bills, approximately amounting to Rs.1,50,00,000/-,
10% of the bill amount was demanded by Dr. Naresh Malhotra of
Aditya Hospital, Sola, Ahmedabad on behalf of the present petitioner.
As complainant was not ready to pay the bribe money, they filed the
complaint.
4.1 The A.C.B Police States that the conversation between witness
Ketan Acharya and accused No.1 Dr. Naresh Malhotra is noted, which
prima-facie shows that present petitioner accused No.2 Dr. Arvind
Narsinhbhai Patel has demanded 10% money of the total bill, as bribe.
It is alleged that the petitioner, inspite being a government employee,
to take illegal monetary benefit, has made his age-old friend and
batch-mate Dr. Naresh Malhotra his middle-man, and both conspired
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
to take huge sum of money as bribe towards the payment of
government money.
4.2 In the conversation between accused No.1 and Ketan Acharya,
Ketanbhai says to meet the present petitioner in person, for that
accused No.1 refuses to do so, saying that Dr. Arvind Patel won't talk
with him. According to Police, Accused No.1 being a private
practitioner shall not call any witness and demand 10% for passing the
bill.
4.3 ACB Police contended before the 5th Additional Sessions Judge,
Ahmedabad (Rural) that in accordance to Section 41A of Cr.P.C., on
20.2.2021, notice was sent to the petitioner, but has failed to appear
and thus has not cooperated the investigation.
4.4 On 21.2.2021, they enquired at his house, the Petitioner was not
found there. His wife informed them that the petitioner had come at
10.45 p.m., by keeping the mobile phone at home, left the house
informing her that he is away from house for ten days.
4.5 ACB police states that as petitioner did not remain present on
23.2.2021, they searched the house of his relatives, at Dariyapur Police
Station, Kishanwadi Police Station and Vadodara City etc., requisition
were given to send the accused-petitioner for investigation.
4.6 On 1.3.2021 and 2.3.2021, they found petitioner's house lock.
On 2.3.2021, again they searched him at his relatives place. On
7.3.2021, as the petitioner's house was locked, they called his wife
who asked them to see her at the office of one acquaintant, where the
Police recorded the statement of petitioner's wife and the said
person.
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
4.7 Under these circumstances, the Police prayed for warrant under
Section 70 of Cr.P.C.
5. The Petition has been filed with a prayer to issue appropriate
writ, order or direction quashing and setting aside the order dated
2.4.2021 passed by the learned 5th Additional District & Sessions
Judge, Ahmedabad (Rural).
6. Mr. I.H.Syed, learned Senior Counsel with Mr. Prithu Parimal,
learned advocate for the petitioner relying on the case of State
Through Central Bureau of Investigation v. Dawood Ibrahim Kaskar,
reported in AIR 1997 SC 2494, submitted that warrant under Section 70
of the Cr.P.C. cannot be issued for the purpose of aiding investigation
by the Police. Mr. I. H. Syed, learned Senior Counsel submitted that any
such issuance of warrant is clearly barred in law. He further submitted
that the petitioner had cooperated the investigation, his statement
has been recorded and the entire exercise by the Investigating Officer
to seek issuance of Non-bailable warrant is unwarranted and
vexatious. Reliance has also been placed on judgment of Inder Mohan
Goswami and Another v. State of Uttaranchal and Others, reported in
(2007) 12 SCC 1.
7. Mr. Mitesh Amin, learned Public Prosecutor submitted that
Cr.P.C. does not deny issuance of warrant or proclamation before the
stage of trial and the warrant of arrest under Section 73 could be
issued by the Court, pending investigation if the material is sufficient
for the satisfaction of the Court to justify issuance of warrant. Learned
Public Prosecutor relied upon the case of Nazimuddin Fakruddin Kazi v.
State of Gujarat, reported in 2016 (1) GLR 208., to emphasise the
observation made by the Court, that while exercising power of
issuance of warrant under Sec. 73 of Cr.P.C.pending investigation, care
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
has to be taken, that the Court/ Magistrate will reach the satisfaction
about sufficiency of the material and evidence justifying the issuance
of warrant against the person who is accused of non-bailable offence
and who is evading arrest. The Court has to record the satisfaction
that there is sufficient material prima facie satisfying about the
involvement of the accused of such non-bailable offence and evading
arrest at the same time.
8. The petitioner has challenged the issuance of warrant on the
ground that no such orders could be passed for the purpose of aiding
investigation by the Police. At this stage, reference may be made to
the decision of the Supreme Court in the case of State through Central
Bureau of Investigation v. Dawood Ibrahim Kaskar (supra). In the said
decision, the question before the Supreme Court was as to when and
under what circumstances a court can invoke the provisions of section
73 of the Code of Criminal Procedure, 1973. While deciding the said
question, one of the moot questions that arose for consideration was
whether a court can issue a warrant to apprehend a person during
investigation for his production before the police in aid of the
investigation. The court held thus:
"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 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 Sections 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
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
seek for and obtain a warrant of arrest from the Magistrate. If the
accused evade 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 Section 73 and thereafter those relating to
proclamation and attachment. In such an eventuality, the Magistrate
can legitimately exercise his power under Section 73, for the person to
be apprehended is "accused of a non-bailable offence and is evading
arrest."
21. xxx xxx 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]
23. Now that we have found that 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 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 authorise 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
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
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 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 Section 73 of the Code could be issued by the Court solely
for the production of the accused before the police in aid of
investigation."
9. It has been clarified in the judgment of State Through Central
Bureau of Investigation v. Dawood Ibrahim Kaskar (Supra) , that since
warrant 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, it becomes necessary to exercise judicial
discretion based on materials placed before the Court.
9.1 Here in present case, the FIR was registered on 4.12.2020,
accused No.1 was arrested on 6.2.2021, and as per the petitioner, he
had appeared before the Investigating Officer on 8.12.2020 and
11.12.2020, there is no explanation from the side of the Investigating
Officer as to why no steps were taken to arrest the petitioner, and
what reason rests with the Investigating Officer for not making the
arrest of the petitioner till 20.2.2021. The reasons put forward before
the concerned Judge was that on 20.2.2021, after issuance of notice
under Section 41A the petitioner was called for recording of his
statement, he was not available and the Investigating Officer found
that he was not cooperating investigation and was evading arrest. It is
stated by the Police that the petitioner is hiding himself. Thereafter,
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
till 7.3.2021, the Police tried to search the petitioner at his home and
at his relatives residence. It is to be noted that no effort has been
made to inquire about his presence at the place of the service of the
petitioner. Section 48 of the Cr.P.C. authorises the Police Officer, for
the purpose of arresting without warrant, to pursue such person at
any place in India.
10. In the case of Inder Mohan Goswami and Another v. State of
Uttaranchal and Others (Supra), it has been held that the power of
issuing warrants being discretionary must be exercised judiciously
with extreme care and caution. The Court should properly balance
both personal liberty and social interest before issuing warrants. The
warrants either bailable or non-bailable should never be issued
without proper scrutiny of facts and complete application of mind,
due to extremely serious consequences and ramifications which ensue
on issuance of warrants. The Court must very carefully examine
whether the criminal complaint or FIR has not been filed with an
oblique motive. It is further held that courts should be extremely
careful before issuing non-bailable warrants as issuance of these
warrants involves interference with personal liberty. Enumerating the
circumstances in which NBW should be issued, the Court further held
that, though there cannot be any straitjacket formula for issuance of
warrants, generally issuance of NBW should be avoided unless the
accused is charged with a heinous crime and it is feared that he is
likely to tamper or destroy the evidence or is likely to evade the
process of law. Since personal liberty is paramount, courts cautioned
that at the first and the second instance they must refrain from
issuing NBWs. If the Court is of the opinion that a summons will be
sufficient in getting the appearance of the accused in the Court, the
summons or the bailable warrants should be preferred.
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
11. Section 70 of Cr.PC. is the form of warrant of arrest and
detention. Section 73 of Cr.PC is the provision which empowers the
Chief Judicial Magistrate or a Magistrate of the First Class to issue an
order of arrest warrant. Section 73 reads as under:
"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 case, unless security is taken under section 71".
12. Bare reading of the Section shows that direction of warrant
under Section 73 of Cr.PC. can be given for the arrest of (i) any
escaped convict; (ii) proclaimed offender or (iii) a person who is
accused of a non-bailable offence and is evading arrest.
13. Here in the present case the offence was registered on
4.12.2020. On 20.2.2021, the notice under Section 41A was issued.
According to the petitioner, on 8.12.2020 and 11.12.2020, petitioner
was called by Investigating Officer for giving statement and in
compliance his statement was recorded. From 21.2.2021 till 7.3.2021,
they made search at Petitioner's house and at his relatives place.
Statement of his wife and one of the acquaintance was recorded by
Police. The petitioner is Deputy Health Officer at North-West Zone of
the Ahmedabad Municipal Corporation. The Police has not searched
for him at his working place. According to Police, leaving behind his
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
mobile phone, he had left the house on 21.2.2021 for ten days. What
was the statement of the wife of the petitioner and petitioner's friend
has not been examined by the Court.
14. The relevance of issuance of warrant under Section 70 of Cr.PC
and provision under Section 41A would require examination in
connection to the circumstances pleaded by ACB Police.
15. What Section 41A provides is that, on failure of compliance of
terms of notice, it shall be lawful for the Police Officer to arrest the
person for the offence mentioned in the notice, subject to such orders
as may have been passed in this regard by the competent Court in this
behalf. So, the Police is competent to arrest the person named in the
notice, if the person fails to comply with the terms of the notice. The
Police can, thus, proceed in terms of sub-sections (3) and (4) of
Section 41A of CrPC.
15.1 So what gets invoked is provision under Section 41A(3) and (4)
and not Section 73 of CrPC. The pre-requisite for arrest under Section
73 and under 41A of CrPC are different. In the case at hand, the prayer
for warrant of arrest was made on the ground that the petitioner was
evading arrest. While Section 41A contemplates notice for appearance
before police officer. Moreso, Section 41A notice comes to be issued
when arrest of the person is not required under the provisions of sub-
section (1) of Section 41 of Cr.PC. Section 73 of Cr.P.C. lays that the
person against whom warrant is issued, if arrested, he shall be made
available with the warrant to the nearest police office who shall cause
the arrestee to be taken to the Magistrate having jurisdiction in the
case, unless security is taken under Section 71. The striking difference
is, arrest under Section 41A is made for appearance before police
officer, while under Section 73 is made for production of the person
named in the warrant before the Court. When the noticee fails to
R/SCR.A/6053/2021 JUDGMENT DATED: 31/08/2021
comply the terms of notice and arrest becomes inevitable, then
procedure under Section 41B is to be followed, where accordingly
memorandum of arrest shall be prepared by the Police Officer.
15.2 Now, it requires to be observed that Form No.2, in the Second
Schedule of Cr.P.C is the standard form for warrant of arrest, while no
such form is provided as yet, for the memorandum of Arrest to be
adopted by the Police while adhering to the provision of Section 41B
of Cr.P.C., even no standard template as such, is followed by the Police
for the issuance of notice under Section 41A. Section 41 of Cr.P.C. lays
down the standards for the investigator to satisfy himself/ herself on
whether to arrest a suspect/ accused. Compliance of Section 41A
notice and continuance of compliance with the notice may not subject
the noticee to arrest, nevertheless, sub-section (3) of Section 41A of
the Cr.P.C. provides that where an accused person complies with such
notice under Section 41A(1) and attends before the Police Officer
issuing such notice, such Police Officer can still arrest if he / she
believes that arrest is necessary. The notice under Section 41A may
not contain a warning to the noticee, which may state of liable arrest
under Section 41A(3) and (4) of Cr.P.C. in failure to attend/ comply
with the terms of the notice, nonetheless, such notice shall not deter
the noticee to persue for anticipatory bail, since failure to comply the
command under Section 41A of Cr.P.C, would necessarily result in
punitive action, which would result in depriving the petitioner of his
liberty.
15.3 Section 41A was introduced by the Code of Criminal Procedure
(Amendment) Act, 2008 (5 of 2009), thereafter by Code of Criminal
Procedure (Amendment) Act, 2020 (41 of 2010), the amendment made
it obligatory for a police officer to issue such notice by substituting
'shall' in place of 'may' vide Section 3(a) of the 2010 amendment Act.
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The amendment also enacted a proviso to Section 41(1)(b)(ii)
providing for recording of reasons for not arresting an accused.
16. It was not until the Supreme Court directed in the case of
Arnesh Kumar v. State of Bihar and Another, reported in AIR 2014 SC
2756, that the provision for issuing a notice of appearance under
Section 41A was seriously implemented. The Supreme Court laid down
that:
"Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed
above, we give the following direction:
All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while forwarding/
producing the accused before the Magistrate for further detention;
The Magistrate while authorising detention of the accused shall peruse
the report furnished by the police officer in terms aforesaid and only
after recording its satisfaction, the Magistrate will authorise detention;
The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a
copy to the Magistrate which may be extended by the Superintendent of
police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case,
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which may be extended by the Superintendent of Police of the District
for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action,
they shall also be liable to be punished for contempt of court to be
instituted before High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to
the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven
years or which may extend to seven years; whether with or without
fine".
16.1 Arnesh Kumar v. State of Bihar and Another (Supra) , directs
notice of appearance in terms of Section 41A of Cr.P.C. to be served
on the accused within two weeks from the date of institution of the
case, which may be extended, as laid down by the Apex Court, by the
Superintendent of Police of the District for the reasons to be recorded
in writing.
16.2 Provision under Section 41A to Section 41B is a sufficient guard
to secure the attendance of an accused person to aid investigation in
cases, where the punishability of the alleged offences does not
exceed 7 years. The purpose is to enable the Police to gather materials
for filing a charge-sheet from their fact-finding where the accused
person is protected from self-incrimination in any form and at all
stages of the criminal process, preliminary inquiry, investigation as
well as trial.
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16.3 Sub-section (3) of Section 41A permits the Police Officer to
make an arrest where the accused person attends before the
investigating officer in response to a notice of appearance under
Section 41A(1). This power is not subject to any statutory control, and
thus in absence of any procedural control, every case of a notice of
appearance invariably goes to the District Court or to the High Court
for granting anticipatory bail under Section 438 of Cr.P.C., which in the
present case as submitted before the Court, the petitioner is pursuing
his remedies for anticipatory bail.
17. In absence of any specific provision in Section 41A of Cr.P.C. for
an order from the Court for issuance of warrant, and when Section
41A itself permits the Police Officer to make an arrest, no order under
Section 73 of Cr.P.C. would be warranted and no order under Section
73 be made to aid the investigation, when there is no specific inbuilt
safeguards, laying protection against self-incrimination.
18. In view of the above, where provision for arrest are made under
Section 41A of Cr.P.C., order under Section 73 of Cr.P.C. for issuance of
warrant is not justified, moreso when Hon'ble Apex Court has given
specific direction in Arnesh Kumar's case (Supra). Resultantly, the order
dated 02.04.2021, passed by the learned 5th Additional Sessions Judge,
Ahmedabad (Rural) is quashed and set-aside. Rule is made absolute.
(GITA GOPI,J)
SAJ GEORGE
