SUPREME COURT JUDGEMENT AGAINST DAWOOD IBRAHIM KASKAR & ORS. IN 1993 BLAST CASE

SUPREME COURT JUDGEMENT AGAINST DAWOOD IBRAHIM KASKAR & ORS. IN 1993 BLAST CASE

Posted: 14 Mar 2015 07:23 AM PDT
PETITIONER: STATE THROUGH CBI
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.

JUDGMENT
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  27criminal  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 (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 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  thatRed 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 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 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 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 Section173 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 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 theold 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 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 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 underSection 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 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 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 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  personagainst 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 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 partD’ 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 there under  to apprehend, interalia, 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 roduced 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  miscellaneous  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.
Source:
http://judis.nic.in/supremecourt/imgst.aspx?filename=14001

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