1. This order shall dispose of Cr. W.J.C No. 421 of 2001 (Nalini Kant Agrawal v. The State of Bihar) and Cr. W.J.C No. 318 of 2002 (Ajay Agrawal v. The State of Bihar).
2. The facts which have required the parties to rush to this Court in nutshell are that Nalini Kant Agrawal, father of the deceased Dharmendra Agrawal lodged a report at Police Station Bhabhua that his son had been murdered by some unknown persons. The first information report was countersigned by one Nasimuddin Ansari. On strength of the report dated 24.9.2000 an offence was registered against unknown persons. Later on the police found involvement of number of persons and at a later stage the police being convinced that the alleged murder was a result of conspiracy also added Section 120B I.P.C for the purposes of investigation. Subsequent to addition of the offence names of Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal both sons of Late Kamla Kant Agrawal were added in the list of the accused persons. It appears that after the investigation against some, a charge-sheet was filed and on 7.12.2000, Binod Kumar, Officer-in-Charge Police Station, Bhabhua submitted an application (application dated 24.11.2000) inter alia submitting that involvement of Nirmal Kant Agrawal, Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal was writ large, therefore arrest warrant be issued against the said accused persons. On 7.12.2000 the learned Chief Judicial Magistrate granted the application and directed issuance of warrants. From the records it appears that the warrant was issued for production of the said two accused persons in Form-II Schedule-II of the Code of Criminal Procedure and the said warrant returned unserved/unexecuted on 23.12.2000 On 23.12.2000 a request was made by the Station House Officer that the accused were evading arrest and were trying to remove their immovable properties therefore proclamation be issued. On 26.2.2001 an application was filed by the investigating officer seeking a direction for attachment of the property of accused Ajay Kumar Agrawal, Nirmal Kant Agrawal and Amar Kumar Agrawal @ Nippu Agrawal, the Court granted the said application. It appears that an application was filed by the original informant that despite directions of the Court to attach the property no further action had been taken by the concerned investigating officer, which was leading to the belief that the investigating officer had joined hands with the accused persons. An allegation was also made that the accused were very much in the town and were intimidating the original informant and the witnesses. The Court was also appraised of the fact that the applications for grant of anticipatory bail filed by the accused persons had already been rejected.
3. In the order dated 26.2.2001 the learned Chief Judicial Magistrate observed that application for grant of anticipatory bail moved by the said accused persons had already been rejected. The Court further observed that the order of attachment of property had already been passed and it would be the duty of the investigating officer to obtain the warrant of attachment and proceed further. The Court also observed that any further direction to the investigating officer to execute the warrant of attachment would be interference in the investigation.
4. From the records it appears that on 26.9.2001 the investigating officer made an application to the Court for issuance of the arrest warrants. The Court conceded to the request and ordered that warrants for arrest and under Section 83 Cr. P.C be simultaneously issued.
5. The present writ Cr. W.J.C No. 421 of 2001 was filed on 31.8.2001, therefore, the order dated 26.9.2001 passed by the trial Court was not annexed in this writ application. In Cr. W.J.C No. 421 of 2001 the grievances of the applicant Nalini Kant Agrawal are that D.I.G Shahabad Range without any authority of law or without taking into consideration that the Court of Chief Judicial Magistrate had already issued warrants of arrest against the accused persons, issued a direction that accused Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal be not arrested. From Annexure-5 in Cr. W.J.C No. 421 of 2001 it appears that the Superintendent of Police, Kaimur (Bhabhua) vide his letter dated 23.3.2001 had informed the Incharge, Police Station, Bhabhua that in accordance with the direction of the Deputy Inspector General of Police, Shahabad Range as contained in letter No. 236.Apradh Shakha dated 8.3.2001, the said two accused persons be not arrested. The petitioner Nalini Kant Agrawal submits that this action of the D.I.G is per-se illegal and is in teeth of all the orders issued by the competent Court. It is also contended in the writ application that the accused who were avoiding arrest are now being protected by the D.I.G It is also contended in the writ application that the learned Chief Judicial Magistrate was unjustified in passing the order dated 12.6.2001 saying that he was not required to ask the investigating officer to execute the attachment orders.
6. When the matter came up before this Court on 16.7.2002 the Court required the concerned D.I.G to submit his counter that under what authority of law he required his subordinates including the Superintendent of Police, Kaimur (Bhabhua) and others not to execute warrant issued by the Court. On 2.8.2002 affidavit of Mr. Kamlesh Kumar Bhat presently posted as D.I.G, Shahabad Range was filed, who informed the Court that the earlier order was passed by one Mr. P.K Thakur. Shri S.D Yadav, learned counsel for the State informed that under some mistake the affidavit of Mr. Thakur could not be filed. The said Mr. P.K Thakur filed his counter affidavit on 14.8.2002 wherein he submitted that, the fact that warrant of arrest was issued by the Court was not brought to his notice and he himself did not direct that in execution of the Court warrant the accused persons be not arrested. According to him he only stayed the arrest of two non-F.I.R accused. He also stated before the Court that he had received a letter from the office of the Director General of Police, Bihar alongwith a petition alleging false implication of the said two accused persons. According to him his order dated 8.3.2001 must be read in context of the special investigation report No. 3 submitted by the Superintendent of Police, Kaimur (Bhabhua). It is also submitted by him that the fact that the Court had issued warrants against the said accused persons if was brought to his notice he would have passed a different order.
7. Surprisingly in paragraph 12 Mr. P.K Thakur has stated that the order with regard to stay of arrest would necessarily imply in the context of investigation report No. 3 that action under Section 41 Cr. P.C should seize and the Investigating Officer be directed to submit further requisition before the learned Court concerned, making prayer not to proceed further with regard to his earlier requisition for issuance of warrant of arrest. The said D.I.G also submitted that his order could not override a judicial process. According to him if warrant of arrest had already been issued by the Court concerned and had this fact been brought on record by the Superintendent of Police the order of stay of arrest would have been modified with a direction to instruct the Investigating Officer to pray before the learned Court concerned for recalling/cancellation of warrant of arrest and further action with regard to arrest of the two accused would depend upon the decision/order of the learned Court concerned. In paragraph 15 it is contended that from the material collected during the course of the investigation the D.I.G (next incumbent) vide his report dated 20.12.2001 did not deem it appropriate to pass orders for arrest of the two accused whose arrest was stayed earlier.
8. The affidavit filed by Mr. P.K Thakur in fact is an eye wash. On one side Mr. P.K Thakur says that he was right and justified in directing stay of arrest as according to him this was to stay the arrest to be effected under Section 41 Cr. P.C and showing his absolute interest in the accused persons he submits in the High Court that if the fact of issuance of warrant of arrest by the Court was brought to his notice he would have required the Investigating Officer to make a request to the Court for recall of the warrants. His submission, that the present incumbent did not issue any direction for arrest of the said two persons again is misleading statement. This Court is not required to look into the fact that why the present incumbent did not issue any order of arrest, the question before the Court is that under what circumstances and on strength of which particular material the concerned D.I.G directed that the said accused persons be not arrested. The order dated 8.3.2001 annexed as Annexure-B to the counter of Mr. P.K Thakur does not say that accused Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal be not arrested under Section 41 Cr. P.C, in fact the order passed by him is a blanket order and directs the Superintendent of Police to stay the arrest proceedings.
9. During the pendency of this writ application an application for intervention was made by Ajay Kumar Agrawal and Amar Kumar Agrawai @ Nippu Agrawal, the said application was rejected with liberty in their favour that they may take recourse of law for their protection as available under the law. The said two accused persons Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal have filed Cr. W.J.C No. 318 of 2002 inter alia submitting that the order dated 7.12.2000, 23.12.2000 and 26.2.2001 be quashed as the said orders have been passed contrary to law and without taking into consideration that while issuing such warrants the Court was helping and assisting the prosecution in process of investigation. It is contended in the writ application that by issuing the warrants of arrest and attachment the Court was interfering in a prohibited territory and looking to the facts and circumstances of the case the Court should not have issued such warrants.
10. With the consent of the parties both the matters were simultaneously heard. In view of the submissions made by the applicants of Cr. W.J.C No. 318 of 2002 seeking quashment of the warrants etc. they were allowed to address the Court first. Learned counsel for the petitioners of Cr. W.J.C No. 318/2002 placing his strong reliance upon the judgment of the Supreme Court in the matter of State through C.B.I v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438 : A.I.R 1997 SC 2494 submitted that the warrant of arrest under Section 73 could not be issued by the Courts for the production of the accused before the police in aid of investigation, because the warrants envisaged under Section 73 can only be issued for the purposes of Section 204 Cr. P.C, and assuming a warrant under Section 73 of the Code of Criminal Procedure could be issued against the present applicants then too it was necessary for the Court to see that the requirements of Section 73 Cr. P.C were fulfilled or not.
11. Contending contrary to the submissions made in Cr. W.J.C No. 318 of 2002, learned counsel for the petitioner of Cr. W.J.C No. 421 of 2001 submitted that the submissions made by the accused persons were based on misreading and misunderstanding of the provisions of law and the judgment of the Supreme Court. It was contended that the Supreme Court had clearly stated that during the Course of investigation the Court can intervene and direct issuance of the warrant so also can take steps under Sections 82 and 83 of the Code of Criminal Procedure. He, however, submits that the application of the prosecution filed on 7.12.2000 was complete in all respect and the Court below was justified in directing issuance of the warrants and at subsequent stage issuing proclamation under Section 82 Cr. P.C and directing issuance of attachment warrant under Section 83. He, however, submits that the interference by the D.I.G, Shahabad Range was absolutely unjustified and uncalled for and even if he was of the opinion that the accused persons were wrongly implicated in the matter then too without obtaining full facts from the concerned investigating officer he could not issue a direction staying the arrest of the accused persons.
12. For proper and better appreciation of the matter it is necessary to look into the application submitted on 7.12.2000 (the application bears 24.11.2000). In the said application the investigating officer had stated that in reference to matter under consideration during the course of the investigation, complicitly of Nirmal Kant Agrawal, Ajay Kumar Agrawal and Amar Kumar Agrawal @ Nippu Agrawal was writ large, therefore, arrest warrants be issued against them. It was also contended in the application that the above referred persons were in dispute with the deceased in relation to some land, the uncle of the deceased had a petrol pump which before his death was transferred in favour of the deceased and the accused persons to capture the said petrol pump made a complaint to the Indian Oil Corporation as a result of which the petrol pump remained closed for 8-9 months; the deceased was single and had no issues and that the above referred accused are near relations of the deceased and that the deceased was owner of land and houses over which the accused persons had a bad eye.
13. This application was allowed on 7.12.2000 Whether such an application could be allowed or not under the law and on facts has to be seen. In the matter of State v. Dawood Ibrahim Kaskar (supra) the Supreme Court in paragraph 10 categorically observed that the words “accused if in custody” appearing in Section 309(2) refer and relate to an accused, who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.
14. Section 73 which was considered by the Supreme Court in the said matter reads as under:
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.
15. It was submitted before the Supreme Court by the counsel for the State that the Court has been given power under Section 73 of the Code to issue warrant of arrest for apprehension of such a person, and, thereafter, if need be, to issue proclamation and pass orders for attachment of his properties. Contending contrary, it was submitted by the amicus curiae that a warrant could only be issued under Section 204 and in the scheme of part B of Chapter VI a Court can execute a warrant already issued under Section 204 but does not confer any right to issue a warrant much less during investigation. In paragraph 18 of the said judgment their Lordships referred to the recommendation of the Law Commission in its 41st report and further observed that from a bare perusal of the Section it is manifest that it confers a power upon the class of Magistrates mentioned therein to issue warrant for arrest of three classes of persons, namely (i) escaped convict, (ii) a proclaimed offender and (iii) a person who is accused of a non-bailable offence, and is evading arrest. It was also observed that if the contention of Mr. Sibal that Section 204 of the Code is the sole repository of the Magistrate's power to issue warrant and the various Sections of Part ‘B’ of Chapter VI including Section 73 only lay down the mode and manner of execution of such warrant a Magistrate referred to under Section 73 could not and would not have been empowered to issue warrant of arrest for apprehension of an escaped convict, for such a person cannot come within the purview of Section 204 as it relates to the initiation of the proceeding and not to be a stage after a person has been convicted on conclusion thereof.
16. In paragraph 20 of the said judgment the Supreme Court observed as under:
“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 Section 466 or 467 (Part 1) 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 open to the Investigating Officer to ensure 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.”
17. The Supreme Court lastly observed 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 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.
18. The Supreme Court observed that it cannot be gainsaid that a Magistrate plays a role during investigation, in that on the prayer of the investigating agency he holds test identification parade, records the confession of the accused or the statement of witness or takes or witnesses the taking of specimen handwriting etc. The Supreme Court further observed that when such actions are performed by the Judicial Magistrate he does not exercise judicial discretion which he is required to exercise when an accused of a non-bailable offence is produced before him pursuant to a warrant of arrest issued under Section 73. The Court further observed that when such an accused is produced before the Court he may be released on bail or the Magistrate may authorise his detention in custody (either police or judicial) under Section 167 of the Code. When the prosecution agency makes an application to the Magistrate for the custody of the accused then the Judicial Magistrate has to pass an order after exercise of judicial discretion based on materials placed before him. In the last lines of paragraph 23 the Supreme Court observed that “Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely (emphasis supplied) for the production of the accused before the police in aid of investigation”. From these observations of the Supreme Court the petitioners in Cr. W.J.C No. 318 of 2002 want to say that no warrant at all can be issued. In the opinion of this Court on a fair reading and understanding of the provisions of law and the judgment of the Supreme Court, it would clearly appear that a warrant of arrest cannot be issued only to help and assist the police in its investigation. The Supreme Court simply observed that a Magistrate is authorised to issue a warrant under Section 73 and if the accused is produced before him then the prayer for police custody may or may not be granted depending upon application of judicial discretion, and submission of the material placed before him. When the Apex Court said ‘that Mr. Desai was not absolutely right’ their Lordships simply wanted to say that a warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation.
19. So far as the Cr. W.J.C No. 421 of 2001 is concerned this Court must observe that the D.I.G, Shahabad Range was not justified in issuing such a direction and in fact he acted beyond his jurisdiction. This Court must record its displeasure against the manner in which Mr. P.K Thakur, the then D.I.G of Shahabad Range issued the directions and is trying to justify his illegal action.
20. The question for consideration still is that to what relief the petitioners of Cr. W.J.C No. 318 of 2002 are entitled.
21. Section 73(1) says that the Chief Judicial Magistrate or a Magistrate of First Class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender of any person who is accused of a non-bailable offence, and is evading arrest.
22. From the language of Section 73(1) it would clearly appear that warrant of arrest can be issued against escaped convict or against a proclaimed offender or against any person who is accused of a non-bailable offence and is evading arrest.
23. Undisputedly the petitioners of Cr. W.J.C No. 318 of 2002 are not escaped convict nor were proclaimed offender on 7.12.2000, in fact it was submitted before the Chief Judicial Magistrate that they were accused of a non-bailable offence. The application dated 7.12.2000 did nowhere say that the accused persons were evading arrest.
24. The third category of the persons against whom the Chief Judicial Magistrate or any Magistrate can issue warrant are “any person who is accused of a non-bailable offence, and is evading arrest”. The phrase cannot be read to mean that a warrant can be issued against any person who is accused of a non-bailable offence or against any person who is evading arrest. In the present matter the word “and” has been used between the two phrases viz. “any person who is accused of a non-bailable offence”—“is evading arrest”. The word “and” has been used as a conjuctive, both these situations must appear simultaneously, a person against whom warrant is to be issued must be accused of a non-bailable offence so also must be evading arrest. If both the eventualities are not available simultaneously or at the same time then a warrant cannot be issued. The words “and is evading arrest” would in fact qualify the escaped convict, a proclaimed offender and accused of a non-bailable offence. Issuance of the warrant is qua a person who is evading arrest. If any person accused of a non-bailable offence is not evading arrest then he can certainly be arrested by police under Section 41 of Cr. P.C and a warrant under Section 73 of Cr. P.C would not be required against him.
25. In the opinion of this Court the application dated 7.12.2000, submitted by the Station House Officer before the Chief Judicial Magistrate was incomplete and lacked in material particulars. From the order dated 7.12.2000 it also does not appear that the learned Magistrate applied his mind to the facts of the case or looked into the application or considered the requirement of law. The order dated 7.12.2000 simply says that the investigating officer submitted an application for issuance of warrants, seen the same, warrants be issued against the accused persons. The said order which was to make an inroad into the personal liberty could not be passed casually and in the opinion of this Court could only be passed after taking into consideration the totality of the cicumstances, contents of the application and the requirement of law. The order dated 7.12.2000 cannot be approved it deserves to and is accordingly quashed. The order dated 23.12.2000 says that the Investigating Officer prayed for issuance of a proclamation. A proclamation is to be issued under Section 82 that too if the Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it (emphasis supplied) 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 specified place and at a specified time not less than 30 days from the date of publishing such proclamation. An application/prayer under Section 82 can be granted by the Court only if it is satisfied that the warrant issued by it cannot be executed. If the order for issuance of the warrant under Section 73 Cr. P.C itself is illegal then Section 82 and/or Section 83 of the Code of Criminal Procedure would not come into play. Section 83 would authorise the Court issuing the proclamation for reasons to be recorded in writing, at any time after the issue of the proclamation, for the attachment of any property movable or immovable, or both, belonging to the proclaimed person. In law I have already found that the Chief Judicial Magistrate/Magistrate of First Class have jurisdiction to issue warrant under Section 73 but such a warrant can be issued only against such persons who are detailed in Section 73 and when the Court records a finding that they are evading arrest.
26. In view of the discussion aforesaid I must hold that the order issuing warrants was not in accordance with law and all subsequent actions on the basis of non-execution of the warrant etc. would fall to ground. The writ application 318 of 2002 must be and is accordingly allowed.
27. The question still is that what liberty should be given to the prosecution to proceed further with the investigation and apprehend the accused persons. From the proceedings it would clearly appear that the anticipatory bail applications filed by the said accused persons have been rejected and despite direction of surrender they did not surrender and under an illegal order of the D.I.G they were protected. The said order of the D.I.G has already been set aside by me. Under these circumstances the police agency is free to make application before the competent Court for issuance of necessary warrants afresh. It is, however, made clear that the Chief Judicial Magistrate/Judicial Magistrate First Class shall look into the contents of the application, record its satisfaction and then pass appropriate orders. Both the writ applications are allowed.
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