Criminal Procedure Code, 1973 – Warrant – the Court cannot issue warrant in aid of investigation prior to filing of chargesheet. Issuance of warrant, without serving notice or bailable warrant and that too in aid of investigation without direction to produce the accused before the appropriate Court is liable to set aside.

Criminal Procedure Code, 1973 – Judicial Custody – Once litigant is before the Court by filing of any proceeding, then, he is to be treated in judicial custody and in that case, it would be appropriate for the concerned Court to pass appropriate direction to such Petitioner to appear before the competent authority in aid of investigation and to ensure that investigation is completed.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 20/10/2016

CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) No. 535 of 2016

JAYSUKH @ JAYESH MULJIBHAI RANPARIYA ( PATEL )….Applicant(s) Versus STATE OF GUJARAT….Respondent(s) Appearance: MR NIRUPAM NANAVATI, SENIOR COUNSEL with MR.VIRAL K SHAH, ADVOCATE for the Applicant(s) No. 1. MR MITESH AMIN, PUBLIC PROSECUTOR with MR. MANAN MEHTA, Additional Public Prosecutor for the Respondent(s) No. 1.

JUDGMENT

1. Rule. Mr. Mitesh Amin, learned Public Prosecutor with Mr. Manan Mehta, learned APP waives service of notice of Rule for Respondent No.1 – State of Gujarat.

2. Heard learned Senior Advocate Mr.Nirupam Nanavati with Mr. Viral K. Shah, learned advocate for the Petitioner as well as Mr.Mitesh Amin, learned Public Prosecutor with Mr. Manan Mehta, learned APP for the Respondent – State. Perused the record.

3. The Petitioner herein is accused with reference to Jamnagar City `A’ Division Police Station vide I­CR No.105 of 2016 registered under Sections 384, 467, 468, 504, 506(2), 34 and 120(B) of IPC. The allegation in the FIR is to the effect that the property worth more than Rs.100 crores has been sold of by bogus power of attorney deed. Therefore, complaint is filed against as many as 13 accused amongst which present Petitioner is accused No.1.

4. However, at present, the impugned order is dated 2.7.2016 below the letters dated 22.7.2016 and 13.6.2016 by the PI of LCB police station, Jamnagar which are treated as applications by the Chief Judicial Magistrate, Jamnagar. By such letter applications, Investigating Officer has requested to issue warrant in English language so as to enable them to execute such warrant upon present Petitioner alleging that  he is avoiding his arrest and selected his hideouts in other State submitting that in other State, a warrant of Court in English is necessary for arresting any such accused. Such warrant is prayed for with reference to

Section 70 of the Code of Criminal Procedure, 1973

5. If we peruse the application, it becomes clear that the only allegation in the application is to the effect that when Investigating Officer tried to arrest the accused, he could not be found at his last known address and though his application for anticipatory bail is cancelled, he is not available for investigation or arrest and, thereby, he is absconding and avoiding arrest and probably he has hidden in some other State and, thereby, there is no possibility to arrest him in near further and, therefore, when police of other State is demanding the warrant by the Court in English so as to arrest such person who are hiding in such other State, there is need of warrant under Section 70 of the Code of Criminal Procedure, 1973 in English. It is also contended that Petitioner was not available at his residence on different dates which is listed in such application viz; 27, 28, 29 May, 2016 and 10,  12, 28, 29 of June, 2016. When application is seeking warrant under Section 70 of the Code of Criminal Procedure, 1973 (For short `Code’) initially provision of Section 70 needs to be referred here, which reads as under:

Form of warrant of arrest and duration

1. Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

2. Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

6. The bare reading of above provision makes it clear that it is providing the manner in which warrant is to be issued i.e. it shall be in writing and signed by the Officer of the Court and shall bear the seal of the Court and that it shall remain in force until it is cancelled by the Court or until it is executed. Therefore, practically, it seems that, though the Investigating Officer wants a warrant as provided under Section 70 of the Code of Criminal Procedure, 1973, enabling provisions to issue such warrant is under Section 73 of the Code of Criminal Procedure, 1973, which reads as under:

 Section 73. Warrant may be directed 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.”

7. It is undisputed fact that though there is reference in sub Section (1) of Section 73 of the Code of Criminal Procedure, 1973 to issue warrant against “any person,” it is also certain that such “any person” is thereafter explained in the same Section, whereby, it is stated that arrest of “any escape convict” or “proclaimed offender” or “any person who is accused of a non­bailable offence and is evading arrest.”

8. Whereas, in sub Section (3) of Section Section 73 of the Code of Criminal Procedure, 1973, it is made clear that when the person against whom such warrant is issued, is arrested, he should be taken before a Magistrate having jurisdiction, unless security is taken under Section 71.

9. Section 71 of the Code of Criminal Procedure, 1973 empowers the Court to direct security to be taken. Thereby, any Court issuing a warrant for the arrest of any person may in its discretion direct by intimation if such person executes a bond, with sufficient sureties for his attendance before the Court at a specified time and, thereafter, only otherwise directed by the Court, the Officer to whom the warrant is directed shall take such security and shall release such person from custody.

10. Section 76 of the Code of Criminal Procedure, 1973 provides that person arrested is to be brought before Court without delay confirming that the Police Officer or other person executing a warrant of arrest shall, subject to the provisions of Section 71 as to security without unnecessary delay bring the  person arrested before the Court before which he is required by law to produce such person, with a proviso that such delay shall not, in any case, exceed twenty­four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

11. Though there is provision of Section 80 in the Code regarding procedure on arrest of person against whom warrant is issued making it clear that unless the Court which issued the warrant is within 30 kilometers of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction, the arrest was made or unless security is taken under Section 71, he should be taken before such Magistrate or District Superintendent of Police or Commissioner; it seems that the proviso of Section 71 regarding twenty­four hours is being misused by the Investigating Agency and, therefore, such situation is arising in so many cases when police asked for warrant prior to filing of chargesheet.

12. The core issue in the present petition is  practically to the effect that whether Court is empowered to issue warrant pending investigation and direct the accused to be arrested for the purpose of investigation though chargesheet is not yet filed before the Court and, thereby, Court has not taken cognizance. Thus, Court can issue warrant only after taking cognizance and to proceed further in accordance with law.

13. It seems that probably, there is practice to issue such warrant by so many Courts and, therefore, it is submitted that the police of other States are seeking such warrant to be issued by an order of the Court. However, the fact remains that irrespective of practices being followed on different places by different Courts and different authorities, whenever, issue is raised before the Judicial Authority, Judicial Authority has to rely solely upon the provisions of law and settled legal position that may be emerging from the decision of Hon’ble Supreme Court of India on the subject. Thereby, irrespective of any inconvenience or necessity of Investigating Agency or any­one else, even if, benefit is to be extended to the accused, then, there is no option but to extend such benefit to the accused irrespective of nature and gravity of  crime or nature of the offender.

14. One such glaring example is the case of Dawood Ibrahim Kaskar whose identity does not need any details, but the full bench of the Hon’ble Supreme Court of India has, in similar situation decided the issue in his favour by cancelling the warrant. The case under reference is of

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