http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 11

Vs.

RESPONDENT:
DAWOOD IBRAHIM KASKAR & ORS.

DATE OF JUDGMENT: 07/05/1997

BENCH:
M.K. MUKHERJEE, G.T. NANAVATI, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:
Present:
Hon’ble Mr.Justice M.K. Mukherjee
Hon’ble Mr.Justice G.T. Nanavati
Hon’ble Mr.Justice B.N. Kirpal
Ashok Desai, Attorney General, and Altaf Ahmad, Additional
Solicitor General, Pallav Shishodia, P. Parmeswaran, Advs.
with them for the appellant.
Kapil Sibal, Sr. Adv. (A.C.), Ashok Grover, Sr. Adv. Rajiv
Sharma, Adv. (A.C.), T.C. Sharma, Ajay Sharma and Ms. Neelam
Sharma, Advs., with them for the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
M.K. MUKHERJEE, J.
The principal question that is required to be answered
in these appeals is when and under what circumstance a Court
can invoke the provision of Section 73 of the Code of
Criminal Procedure, 1973 (‘Code’ for short). The question
arises in this way.
On March 12, 1993 a series of bomb explosions took
place in and around the city of Bombay which result in the
death of 257 persons, injuries to 713 persons and damage to
properties worth Rs. 27 crores (approximately). Over the
explosion 27 criminal cases were registered and on
completion of investigation a composite charge-sheet was
forwarded to the Designated Court, Greater Bombay on
November 4, 1993 against 198 accused persons, showing 45 of
them absconders, for commissioner of various offences
punishable under the Indian Penal Code, the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (‘TADA’ for
short) Arm Acts, 1959, Explosives Substances Act, 1908 and
other Acts. On that charge-sheet the Designated court took
cognizance and the case registered thereon was numbered as
B.B.C. (Bomb Blast Case) No.1 of 1993.
A few days thereafter - on November 11, 1993 to be
precise - the Government of India, with the consent of the
Government of Maharashtra, issued a notification entrusting
further investigation in the above case to Delhi Special
Police Establishment (CBI) under the provisions of Section 5
of the Delhi Special Police Establishment Act, 1946.
Pursuant thereto CBI registered a case being No. R.C. 1
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(5)/93/S.T.F. Bombay on November 19, 1993 and took up
further investigation with permission of the Designated
Court.
In course of such investigation CBI apprehended Mohd.
Salim Mira Moiuddin Shaikh @ Salim Kutta, one of the
absconders mentioned in the charge-sheet, on July 24, 1995.
He made a confessional statement before Shri S.K. Saikia,
Deputy Inspector General of Police, CID, Ahmedabad, which
was recorded by him on August 18 and 19, 1995 under Section
15 of TADA. In that confession he disclosed that the
respondent Nos. 2 to 7 herein (hereinafter referred to as
the ‘respondents) had taken active part in the criminal
conspiracy which was the subject matter of B.B.C. No. 1 of
1993. Thereafter on May 2, 1996, the CBI moved an
application before the Designated Court (Misc. Application
No. 201 of 1996) wherein it stated that following the
disclosure of the involvement of the respondents in the
offences in question, raids has been conducted at their
known hideouts to arrest them but none could be apprehended
in spite of best efforts as they were deliberately evading
their arrest to escape the clutches of law and, accordingly,
prayed for issuance of non-bailable warrants of arrest
against them to initiate further proceedings in the matter
to apprehend them and/or to take further action to declare
them as proclaimed offenders. Two other applications (Misc.
Application Nos. 210 and 211 of 1996) were thereafter moved
on June 3, 1996 for publication of written proclamations
under Section 8(3)(a) of TADA as also for issuance of open
dated non-bailable warrants of arrest so that ‘Red Corner
Notices’ might be issued against them. According to CBI such
notices are required to be got issued by INTERPOL to seek
police assistance in a foreign country to locate and
apprehend fugitives.
When the three applications came up for hearing a
learned Advocate who was appearing for some of the persons
arraigned in B.B.C. No. 1 of 1993 submitted before the
Designated Court they were entitled to copies of the
applications and a right of hearing on their merits in the
matter. The Designated Court accepted his submission; and on
receipt of the copies of the application the learned
Advocate filed a rejoinder thereto. After hearing the
parties the Designated Court, by its order dated August 1,
1996, rejected the applications. The above order is under
challenge in these appeals preferred at the instance of CBI.
From the impugned order we find that before the
Designated Court it was submitted on behalf of CBI that
since it was making further investigation into the offences
in respect of which chargesheet has earlier been submitted
and since the presence of the respondents, who were
absconding, was absolutely necessary for ascertainment of
their roles, if any, in commission of the offences, it was
felt necessary to file the applications. It was further
submitted that only after warrants and/or proclamations as
prayed for were issued, that it (CBI) would be able to take
further coercive measure to compel them to appear before the
Investigating Agency for the purpose of intended further
investigation. According to CBI under Section 78 of the Code
and Section (3)(a) of TADA the Designated Court was fully
empowered to issue warrants of arrest and proclamations. In
rejecting the above contention the Designated Court held
that after cognizance was taken in respect of an offence
process could be issued to the persons accused thereof only
to compel them to face the trial but no such process could
be issued by the Court in aid of investigation under Section
73 of the Code. According to the Designated Court, though
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under code further investigation was not barred there was no
provision therein which entitled the Investigating Agency to
seek for and obtain aid from the Court for the same. Since
the above findings were recorded by the Designated Court
relying solely upon the judgment of the Bombay High Court in
Mohammad Yasin Mansuri vs. State of Maharastra. (1994)
Crl.L.J. 1854, it will be necessary to refer to the same in
some details. In that case investigation into an offence of
murder and other related offences was taken up initially by
the Officer-in-Charge of Byculla Police Station and
thereafter by a Deputy Commissioner of Police (DCP) of CID.
During the investigation the Designated Court, on the prayer
of the DCP, issued non-bailable warrants for apprehension of
some of the accused involved in those offences. Thereafter a
charge-sheet came to be filed against several accused, some
of whom were before the Court and some other including
Mansuri (the petitioner before the High Court) were shown as
absconding. In the very day the charge-sheet was filed
Designated Court took cognizance of the offences mentioned
therein. Few months later Mansuri came to be arrested by the
CBI, Delhi in connection with some other offence. On receipt
of that information the DCP filed an application before the
Designated Court for warrants of arrest and production of
Mansuri before it. The prayer was allowed and in due course
Mansuri was brought to Bombay and handed over to DCP. On the
following day Mansuri was produced before the Designated
Court; and on such production the prosecution prayed for
remand of Mansuri to police custody. The prayer was allowed
and the Designated Court remanded him to police custody, but
kept the order in abeyance for a few days to enable Mansuri
to challenge the same in a superior court. Assailing the
above order of the Designated Court, Mansuri moved the
Bombay High Court. Before the High Court it was submitted on
behalf of Mansuri that once investigation into an offence
was complete and a charge-sheet was filed, the provisions of
Section 309 of the Code came into operation and sub-section
(2) of the said Section left no discretion to a Court. The
only course open to the Court then was to remand the accused
to judicial custody. It was further submitted that whereas
Section 167 conferred a discretion upon the Court of
authorising detention of an accused either in judicial
custody or police custody such discretion was completely
absent in Section 309 of the Code. Accordingly, it was
submitted that the order passed by the Designated Court
granting Mansuri to Police custody was without jurisdiction
and liable to be set aside. In accepting the above
contention and quashing the impugned order the High Court
firstly observed:
"It would, therefore, follow that
the warrants which were issued by
the Designated Court for production
of the petitioner could not have
been in aid of investigation but
could only have been by way of
process issued under Section 204 of
the Code of Criminal Procedure.
Issue of warrants after cognizance
of an offence is taken would be a
process contemplated under Section
204(1)(b) of the Code, i.e. it
would be a process to face trial.
Indeed. We do not find any
provision contained in the Code for
issue of warrants of arrest and
custody of accused for the purpose
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of, or in aid of, investigation.
The process contemplated is a
process to face trial."
(emphasis supplied)
The High Court further observed:
"We are conscious that the view we
are taking is likely, in certain
case such as the present one, to
hamper investigation. However, this
is not a matter for us. We have
construed the provision of the Code
and have found that no power is
conferred for providing for police
custody after cognizance of the
offence is taken."
(emphasis supplied)
In view of the provision of Chapter XII and those of
Section 309(2) of the Code we are constrained to say that
the above quoted observations have been made too sweepingly.
Chapter XII relates to information to the police and their
powers to investigate. Under Section 154 thereof whenever an
Officer-in-Charge of a police station receives and
information relating to the commission of a cognizable
offence he is required to reduce the same in writing and
enter the substance thereof in a prescribed book. Section
156 invests the Officer-in-Charge of a police station with
the power to investigate into cognizable offences without
the order of a Magistrate and Section 157 lays down the
procedure for such investigation. In respect of an
information given of the commission of a non-cognizable
offence, the Office-in-charge required under Section 155(1)
to enter the substance thereof in the book so prescribed but
he has no power to investigate into the same without an
order of the competent Magistrate. Armed with such an order
the Officer-in-charge can however exercise all the power of
investigation he has in respect of a cognizable offence
except that he cannot arrested during investigation has to
be dealt with by the investigation Agency, and by the
Magistrate on his production before him, is provided in
Section 167 of the Code. The said Section contemplates that
when the investigation cannot be completed within 24 hours
fixed by Section 57 and there are grounds to believe that
the charge levelled against the person arrested is well
founded it is obligatory on the part of the Investigation
Officer to produce the accused before the nearest
Magistrate. On such production the Magistrate may authorise
the detention of the accused initially for a term not
exceeding 15 days either in police custody, or in judicial
custody. On expiry of the said period of 15 days the
Magistrate may also authorise his further detention
otherwise than in police custody if he is satisfied that
adequate grounds exist for such detention. However, the
total period of detention during investigation cannot be
more than 90 days or 60 days, depending upon the nature of
offences mentioned in the said Section. Under Sub-section
(1) of Section 173 the Officer-in-charge is to complete the
investigation without unnecessary delay and as soon as it is
completed to forward, under Sub-section (2) thereof, to the
competent Magistrate a report in the form prescribed setting
forth the names of the parties, the nature of the
information and the names of the persons who appears to be
acquainted with the circumstances of the case. Sub-Section
(8) entitles the Officer-in-Charges to made further
investigation and it reads as under:
"Nothing in this section shall be
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deemed to preclude further
investigation in respect of an
offence after a report under Sub-
section (2) has been forward to the
Magistrate and, where upon such
investigation, the officer in
charge of the police station
obtains further evidence, oral or
documentary, he shall forward to
the Magistrate a further report to
the report regarding such evidence
in the form prescribed, and the
provisions of sub-section (2) to
(6) shall, as far as may be, apply
in relation to such report or
reports as they apply in relation
to a report forwarded under sub-
section (2)."
In H.N. Rishbud vs. State of Delhi, [AIR 1955 SC 196],
this Court dealt with the definition of ‘investigation’
under the Code of Criminal Procedure, 1898 (hereinafter
referred to as the ‘old Code’), which is same under the new
Code and after analysing the provisions of Chapter XIV of
that Code (which corresponds to Chapter XII of the Code)
stated:
"Thus under the Code investigation
consists generally of the following
steps: (1) Proceeding to the spot,
(2) Ascertainment of the facts and
circumstance of the case, (3)
Discovery and arrest of the
suspected offender, (4) Collection
of evidence relating to the
commission of the offence which may
consist of (a) the examination of
various persons (including the
accused) and the reduction of their
statements into writing, if the
officer thinks fit, (b) the search
of places or seizure of things
considered necessary for the
investigation and to be produced at
the trial, and (5) Formation of the
opinion as to whether on the
material collected there is a case
to place the accused before a
Magistrate for trial and if so
taking the necessary steps for the
same by the filing of a charge-
sheet under Section 173."
Though under the old Code there was no express
provision - like sub-section (8) of Section 173 of the Code
- statutorily empowering in Police to further investigate
into an offence in respect of which a charge-sheet has
already been filed and cognizance taken under Section
190(1)(b), such a power was recognised by this Court in Ram
Lal Narang vs. State [AIR 1979 SC 1791]. In exemplifying the
situation which may prevail upon the police to take up
further investigation and the procedure the Court may have
to follow on receipt of the supplemental report of such
investigation, this Court observed:
"It is easy to visualise a case
where fresh material may come to
light which would implicate persons
not previously accused or absolve
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persons already accused. When it
comes to the notice of the
investigating agency that a person
already accused of an offence has a
good alibi, is it not the duty of
that agency to investigate the
genuineness of the plea of alibi
and submit a report to the
Magistrate? After all the
investigating agency has greater
resources at its command than a
private individual. Similarly,
where the involvement of persons
who are not already accused comes
to the notice of the investigating
agency, the investigating agency
cannot keep quiet and refuse to
investigate the fresh information.
It is their duty to investigate and
submit a report to the Magistrate
upon the involvement of the other
persons. In either case, it is for
the Magistrate to decide upon his
future course of action depending
upon the stage at which the case is
before him. If he has already taken
cognizance of the offence, but has
not proceeded with the enquiry of
not proceeded with the enquiry of
trial, he may direct the issue of
process to persons freshly
discovered to be involved and deal
with all the accused, in a single
enquiry of trial. If the case of
which he has already proceeded to
some extent, he may take fresh
cognizance of the offence disclosed
against the newly involved accused
and proceed with the case as a
separate case. What action a
Magistrate is to take in accordance
with the provisions of the Code of
Criminal Procedure in such
situations is a matter best left to
the discretion of the Magistrate."
In keeping with the provisions of Section 173(8) and
the above quoted observations, it has now to be seen whether
Section 309(2) of the Code stands in the way of a Court,
which has taken cognizance on an offence, to authorise the
detention of a person, who is subsequently brought before it
by the police under arrest during further investigation, in
police custody in exercise of its power under Section 167 of
the Code. Section 309 relates to the power of the Court to
postpone the commencement of or adjournment of any inquiry
of trial and sub-section (2) thereof reads as follows:
"If the Court, after taking
cognizance of an offence, or
commencement of trial, finds it
necessary or advisable to postpone
the commencement of, or adjourn,
any inquiry or trial, it may, from
time to time, for reasons to be
recorded, postpone or adjourn the
same on such terms as it thinks
fit, for such time as it considers
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reasonable, and may be a warrant
remand the accused if in custody.
Provided that no Magistrate shall
remain an accused person to custody
under this Section for a term
exceeding fifteen days at a time;"
xxx xxx xxx xxx
xxx xxx xxx xxx
There cannot be any manner of doubt that the remand and
the custody referred to in the first proviso to the above
sub-section are different from detention in custody under
Section 167. While remand under the former relates to a
stage after cognizance and can only be to judicial custody,
detention under the latter relates to the stage of
investigation and can initially be either in police custody
or judicial custody. Since, however, even after cognizance
is taken of an offence the police has a power to investigate
into it further, which can be exercised only in accordance
with Chapter XII, we see no reason whatsoever why the
provisions of Section 167 thereof would not apply to a
person who come to be later arrested by the police in course
of such investigation. If section 309(2) is to be
interpreted - as has been interpreted by the Bombay High
Court in Mansuri (supra) - to mean that after the Court
takes cognizance of an offence it cannot exercises its power
of detention in police custody under Section 167 of the
Code, the Investigating Agency would be deprived of an
opportunity to interrogate a person arrested during further
investigation, even if it can on production of sufficient
materials, convince the Court that his detention in its
(police) custody was essential for that purpose. We are
therefore of the opinion 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 to an accused who is subsequently arrested in course
of further category is concerned he can be remanded to
judicial custody only in view of Section 309(2), but he who
come 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 has taken cognizance of the offence may exercise its
power to detain him in police custody, subject to the
fulfillment of the requirements and the limitation of
Section 167.
The moot question that now requires to be answered is
whether a Court can issue a warrant to apprehend a person
during investigation for his production before police in aid
of the Investigating Agency. While Mr. Ashok Desai, the
learned Attorney General who appeared on behalf of CBI,
submitted that Section 73 coupled with Section 167 of the
Code bestowed upon the Court such power, Mr. Kapil Sibal,
who appeared as amicus curie (the respondents did not appear
inspite of publication of notice in newspaper) submitted
that Court has no such power. To appreciate the steps of
reasoning of the learned counsel for their respective stands
it will be necessary to refer to the relevant provision of
the Code and TADA relating to issuance of processes.
Chapter VI of the Code which is captioned as ‘processes
to compel appearance’ consists of four parts part A relates
to Summons; part B to warrant of arrest; part C to
proclamation and attachment and part D to other rules
regarding processes. Part B, with which we are primarily
concerned in these appeals, has in its fold Section 70 to
81. Section 70 speaks of the form in which the warrant to
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arrest a person is to be issued by the Court and of its
durational validity. Section 71 empowers the Court issuing
the warrant to direct the officer who is to execute the
warrant, to release that person on terms and condition as
provided therein. Section 72 provides that a warrant shall
ordinarily be directed to one or more police officers but if
its immediate execution in necessary and no police officer
is immediate available it may be directed to any other
person for execution. Section 73 which is required to be
interpreted in these appeals, read as under:
"73(1) The Chief Judicial
Magistrate of a Magistrate of the
first class may direct a warrant to
an 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 enter on, any
land or other property under his
charge."
Section 76 requires the police officer or other person,
who executes the warrant to bring the person arrested before
the Courts (unless he is released in terms of Section 71),
within twenty four hours.
Section 82, appearing in part C empowers the Court to
issue proclamation; and so far as it is relevant for our
present purpose, read as under:
"82(1) If any Court has reason to
believe (whether after taking
evidence or not) that any person
against whom a warrant has been
issued by it 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 a specified place and at
a specified time not less than
thirty days from the date of
publishing such proclamation.
(emphasis supplied)
xxx xxx xxx
xxx
(2) xxx xxx
xxx
(3) xxx xxx
xxx
After issuing a proclamation in terms of the above
provision, the Court may also order attachment of the
property of the proclaimed person under Section 83; and even
deprive him of his such property if he does not appear
within the time prescribed under Section 85.
Chapter XVI relates to commencement of proceedings
before Magistrates and Section 204 appearing therein enable
a Magistrate, who takes cognizance of an offence, to issue
process (summons/warrant) against the accused if he finds
sufficient grounds to proceed against him.
Coming now to the relevant provisions of TADA was may
first refer to sub-section (3) of Section 8 relating to
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proclamation for and attachment of the property of a person
accused of an offence punishable under TADA. Clause (a) of
the above sub-section lays down that if upon a report in
writing made by a police officer or an officer referred to
in sub-section (1) of Section 7, any Designated Court has
reason to believe that any person, who has committed an
offence punishable under the Act or any rule made
thereunder, has absconded or is concealing himself so that
he may not be apprehended, such Court may, notwithstanding
anything contained in Section 82 of the Code, publish a
written proclamation requiring him to appear at a specified
place and at a specified time not less than fifteen days but
not more than thirty days for the date of publication of
such proclamation; and sub-section (3)(b) thereof entitles
the Court issuing the proclamation to order attachment of
property belonging to the proclaimed offender and then
proceed in accordance with Section 83 to 85 of the Code. For
all intents and purpose, therefore, sub-section 8(3) of TADA
seeks to achieve the same object as part C of Chapter VI
does, namely to compel appearance of the accused. The other
section to which reference need be made is Section 20 which
makes the provisions of the Code applicable to the
proceeding under TADA, subject to the modification envisaged
therein.
The contention of Mr. Desai was that though in exercise
of its power under Section 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 any cognizable offence
of 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,
Mr. Desai argued, that the Court has been given the power
under Section 73 to issue warrant of arrest for apprehension
of such a person; and, thereafter, if need be, to issue
proclamation and pass order for attachment of his
properties. In joining issues, Mr. Sibal urged that the
scheme of the Code is that the police has complete control
of the investigation and is not aided by any judicial
authority. Once the investigation culminates in the police
report under Section 173(2) that the Court steps in by
taking cognizance thereupon and issuing summons or warrant
under Section 204 against the person arraigned. According to
Mr. Sibal, in the scheme of the Code it is unthinkable that
the police, while investigating under Chapter XII is
entitled to seek the help of a Magistrate for the purpose of
issuance of a warrant of arrest in aid of investigation. As
regards Section 73, Mr. Sibal’s argument was that in the
scheme of part B of Chapter VI that section only lays down a
procedure to enable a Court to execute a warrant already
issued under Section 204 but does not confer any right to
issue a warrant, much less during investigation.
At this stage it is pertinent to mention that under the
old Code the corresponding provision was Section 78; and
while recommending its amendment the Law Commission in its
41st report stated, inter alia:
"6.8 Section 78 at present confers
a power on the District Magistrate
or Sub-Divisional Magistrate to
issue a special type of "warrant to
a land-holder, farmer or manager of
land within the district of sub-
division for the arrest of an
escaped convict, proclaimed
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offender or person who has been
accused of a non-bailable offence
and who has eluded pursuit".
Although the power is infrequently
exercised, there appear to be no
objection to conferring it on all
Magistrates of the first class and
all .............
...................................
....................."
(emphasis supplied)
Apart from the above observations of the Law
Commission, from a bare perusal of the Section (quoted
earlier) it is manifest that it confers a power upon the
class of Magistrates mentioned therein to issue warrant for
arrest of three classes of person, namely, i) escaped
convict, ii) a proclaimed offender and iii) a person who is
accused of a non-bailable offence and is evading arrest. 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 can not come within the purview
of Section 204 as it relates to the initiation of the
proceeding and not to a stage after a person has been
convicted on conclusion thereof.
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 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.’
Another factor which clearly indicates that Section 73
of the Code gives a power to the Magistrate to issue warrant
of arrest and that too during investigation is evident from
the provisions of part ‘C’ of Chapter VI of the Code, which
we have earlier adverted to. Needless to say the provisions
of proclamation and attachment as envisaged therein is to
compel the appearance of a person who is evading arrest.
Now, the power of issuing a proclamation under Section 82
(quoted earlier) can be exercised by a Court only in respect
of a person ‘against whom a warrant has been issued by it’.
In other words, unless the Court issues a warrant the
provisions of Section 82, and the other Sections that follow
in that part, cannot be invoked in a situation where inspite
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of its best effects the police cannot arrest a person under
Section 41. 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]
Lastly, we may refer to Section 90, which appears in
part ‘D’ of Chapter VI of the Code and expressly states that
the provisions contained in the Chapter relating to a summon
and warrant, and their issue, service and execution shall,
so far as may be, apply to every summon and every warrants
of arrest issued under the Code. Therefore, when a Court
issues a warrant of arrest, say under Section 155 of the
Code, any steps that it may have to subsequently take
relating to that warrant of arrest can only be under Chapter
VI.
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 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.
On the conclusions as above we allow these appeals, set
aside the impugned order and direct the Designated Court to
dispose of the three miscellanous applications filed by
C.B.I in accordance with law and in the light of the
observations made herein before.
Before parting with this judgment was place on record
our deep appreciation for the valuable assistance rendered
by Mr. Desai and Mr. Sibal in deciding the issue involved in
these appeals.