Jharkhand High Court
Nalin Soren vs State Of Jharkhand Thr.Directo on 17 July, 2013
Author: R. R. Prasad
Bench: R. R. Prasad
IN THE HIGH COURT OF JHARKHAND, RANCHI
W. P. (Cr.) No. 103 of 2012
Nalin Soren ..... Petitioner(s)
Versus
The State of Jharkhand, through, Director, Vigilance
.... Respondent(s)
CORAM: HON'BLE MR. JUSTICE R. R. PRASAD
For the Petitioner(s) : M/s R. S. Mazumdar, Sr. Advocate
Vishnu Kr. Sharma, Advocate.
For the Vigilance : M/s Shailesh, Advocate.
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I. A. No.4908 of 2013.
16 /17.07.2013. Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance.
The order, dated 09.07.2013 passed in Vigilance P.S. Case No.11 of 2009 [Special Case No.15 of 2009], whereby and whereunder warrant of arrest has been ordered to be issued against the petitioner, is being sought to be quashed on the ground that the same has been passed in derogation of the order passed by this Court on 17.05.2013 by which the order under which warrant had been issued was quashed.
Mr. Mazumdar, learned Senior Counsel appearing for the petitioner submits that earlier on a requisition submitted by the I.O., when an order was passed for issuance of warrant of arrest it was challenged before this Court. This Court having found that the said order had never been passed in consonance with the provision as contained in Section 73 of the Criminal Procedure Code, quashed that order. In spite of that, the I.O. submitted a fresh requisition before the court below, praying therein, to issue warrant of arrest against 11 persons including the petitioner on the plea that they are evading arrest and in order to substantiate its plea, reference of the paragraphs of the case diary have been given wherein the dates on which raids were laid for arresting the accused have been mentioned, but it is not specific as to when raid was laid to arrest a particular accused and as such, it was quite vague as to when raid was laid to arrest this petitioner. Therefore, any opinion formed on such material that the petitioner is evading arrest is quite untenable. Moreover, all the dates when it is said that raids were laid are prior to 17.05.2013 which never gives a fresh cause of action to Investigating Officer to make prayer for issuance of warrant of arrest against the petitioner. In spite of that the court has passed order for issuance of warrant of arrest which is quite illegal.
As against this, Mr. Shailesh, learned counsel appearing for the Vigilance submits that earlier when the order was passed for issuance of warrant of arrest against the petitioner, that order when was challenged, it was set aside by this Court on the ground that the order was never, in consonance with the, provision as contained in Section 73 of the Criminal Procedure Code and purely on technical ground the order under which warrant of arrest had been issued was set aside. Subsequent to that the I.O. came forward with a fresh requisition, stating therein that this petitioner and other accused persons are evading arrest and on that ground, prayer was made for issuance of warrant of arrest.
Learned counsel further submits that though plea has been taken that a general statement has been made that the accused are evading arrest, but in the diary definite informations are there as to when raid was laid to arrest the petitioner and, therefore, on being satisfied that this petitioner is evading arrest when the order has been passed for issuance of warrant of arrest, the court never did commit any wrong and thereby, that order never warrants to be quashed.
In the context of the submission, one needs to take notice of the order passed on 17.05.2013 so as to have have an idea as to on what basis the order under which warrant of arrest had been issued was quashed. Relevant part of the order is being reproduced here-in- below :-
"From perusal of the requisition, on the basis of which an order was passed for issuance of warrant of arrest, it would appear that warrant of arrest was sought to be issued on the ground that only upon arrest of the accused persons including the petitioner something could be divulged in the matter and that sufficient materials have been collected against the petitioner but none of the grounds mentioned in the requisition comes within the purview as contained in Section 73 of the Code of Criminal Procedure. Nowhere it has been stated in the requisition that the accused is evading arrest and in such situation, learned Magistrate certainly committed illegality in passing the order relating to issuance of warrant of arrest against the petitioner."
Simple reading of that part of the order is suggestive of the fact that I.O. at that point of time had never approached to the Court for issuance of warrant of arrest on the ground that the petitioner is evading arrest rather the grounds which had been taken were never germane to the provision as contained in Section 73 of Cr.P.C.
After the aforesaid order was passed, the I.O. again came up with a fresh requisition, stating therein, that this petitioner and the other accused persons have been evading arrest and even the dates when the raids were laid have been recorded in the requisition. However, it has been argued on behalf of the petitioner that those dates never do indicate as to whether those dates refer to case of the petitioner or others.
However, the said plea was countered by the learned counsel appearing for the Vigilance by stating that definite statement is there in the case diary to indicate that when raids were laid to arrest the petitioner, the petitioner was found absconding. From the impugned order, it does appear that the court upon being satisfied with the materials placed that the petitioner is evading arrest passed the order which seems to be in accordance with the provision as contained in Section 73 Cr.P.C..
The provisions as contained in Section 73 of the Criminal Procedure Code reads as follows :-
"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 fo 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.
From bare perusal of the section, it is manifest that it confers a power upon the Magistrate 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.
There appears to be a purpose on the part of the legislature to have a legislation to that effect as in order to maintain rule of law and to keep the society functional in harmony, it is necessary for the court to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other hand.
The scope and parameter of the said provision was examined by the Hon'ble Supreme Court in a case of State through CBI v. Dawood Ibrahim Kaskar [(1997) 2 East Cr. Case 124 (SC):
AIR 1997 SC 2494]. Their Lordships, while examining it, took into consideration the recommendation of the Law commission made in its 41st report and observed in paragraph 20 of the said judgment 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 intoa 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."
Consequently, it was held that Section 73 of the Code is of general application and that in course of 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.
While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation.
In another case, Joginder Kumar Vs. State of U.P. and Ors., [1994 (4) SCC 260] as referred to, on behalf of the petitioner, Their Lordships did take into account the suggestions given by National Police Commission in its 3rd report on the issue relating to issuance of warrant of arrest. According to the report, circumstances which would be apt for issuance of warrant of arrest are as follows :-
(I) The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims;
(ii) The accused is likely to abscond and evade the processes of law;
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint;
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
Regard being had to the facts and circumstances of the case, I do find that the order under which warrant of arrest has been issued is based on a fresh requisition, disclosing therein, that this petitioner and other accused persons are evading arrest. In such situation, the court seems to be absolutely justified in issuing warrant of arrest against the petitioner.
It would be worthwhile to record that whatever dates are there in the requisition relating to laying of raid to effect arrest, those dates are prior to 17.05.2013 when this Court had quashed the order, under which warrant of arrest, had been issued, but at that time the prosecution had never come with the case that the petitioner has been evading arrest. Therefore, it will have hardly any effect upon the order impugned.
Thus, I do not find any illegality with the order dated 09.07.2013 passed in Vigilance P.S. Case No.11 of 2009 [Special Case No.15 of 2009] under which warrant of arrest has been issued against the petitioner.
Accordingly, I. A. No.4908 of 2013 is hereby, dismissed.
Sandeep/ (R. R. Prasad, J)