Allahabad High Court
Nadeem Salmani vs State Of U.P. And Another on 12 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 72 Case :- APPLICATION U/S 482 No. - 35979 of 2022 Applicant :- Nadeem Salmani Opposite Party :- State of U.P. and Another Counsel for Applicant :- A.C.Srivastava Counsel for Opposite Party :- G.A Hon'ble Umesh Chandra Sharma, J.
1. Heard Sri A.C. Srivastava, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A for the State, and perused the material available on record.
2. This Criminal Misc. Application has been moved by the applicant under Section 482 Cr.P.C against the order dated 02.09.2022 passed by the Special Chief Judicial Magistrate, Meerut in Case Crime No. 303 of 2021 under Sections 392, 413/34 I.P.C Police Station Delhi Gate, district Meerut, by which non-bailable warrant was issued against the accused-applicant on the application of Investigating Officer of the case.
3. In brief, facts of the case are that one Ramesh Katiyar, R/o Lucknow had come to Meerut to attend the Samajwaadi Rally on 07.12.2021 and had been stayed in Meerut. On 08.12.2021 when he was going towards Ghantaghar and was talking with someone familiar near the ladies hospital, an unknown person fled away taking his red colour Apple I phone mobile at about 5:00 p.m. towards Chhatripeer.
4. On 08.12.2021 five accused persons were arrested near the Town Hall at Gandhi Park and four accused persons succeeded in fleeing. Total 20 mobiles were recovered from their possession. On asking, they informed that the red colour I Phone mobile was also looted by them, they informed that accused Irfan and Sharad Goswami had succeeded in fleeing. They also informed that their gang leader is Inaam the and the Boss is Sharad Goswami and two others are Irfan and Mahfooz, who had succeeded in escaping, it appears that during the course of investigation the name of the applicant also came into picture and the I.O. came to the conclusion that the informant Nadeem Saqulani is also one of the gang member and the accused. It appears that when the accused could not be arrested, an application was moved by the I.O. Mahendra Singh on 01.09.2022 submitted by the competent authority upon which the Special Chief Judicial Magistrate, Meerut called for a report from the office, who reported that the applicant accused Nadeem Saqulani has not moved any application in the concerned crime no. 303 of 2021 under Sections 392, 413/34 I.P.C. After investigation a charge-sheet under Section 392/34 I.P.C was submitted against the accused persons in which cognizance has been taken by the concerned Court.
5. On 01.09.2022 an application was submitted by the I.O. Gajendra Singh, S.I, Police Station Delhi Gate, Meerut that the wanted accused-applicant Nadeem Salmani is absconding and hiding his identity and is in the process of disbursing his immovable property, therefore a non bailable warrant was issued against him by the Special Chief Judicial Magistrate, Meerut on 02.09.2022. The application and the impugned order are as under:-
"रिपोर्ट थाना देहलीगेट जनपद मेरठ।
सेवा में, माननीय न्यायालय श्रीमान स्पेशल सीजे०एम महोदय जनपद मेरठ।
विषयः- मु०अ०सं० 303/21 धारा 392/413/34 भादवि में प्रकाश में आये वांछित अभियुक्त नदीम सलमानी पुत्र सलीम सलमानी निवासी 242 कुएं वाली गली कोटला थाना देहलीगेट मेरठ के गैर जमानती वारण्ट जारी करने के सम्बन्ध में।
महोदय, सादर निवेदन है कि मु०अ०सं० 303/21 धारा 392/413/34 भादवि में प्रकाश में आये वांछित अभियुक्त नदीम सलमानी पुत्र सलीम सलमानी निवासी 242 कुएं वाली गली कोटला थाना देहलीगेट मेरठ के विरुद्ध गिरफ्तारी के सम्बन्ध में काफी प्रयास किये गये है किन्तु अभियुक्त नदीम सलमानी उपरोक्त अपने मसकन से फरार है और अपनी पहचान छिपाये हुये है तथा चोरी छिपे अपनी अचल सम्पत्ति को खुर्द बुर्द कर फरार होने की फिराक में है। माननीय न्यायालय से अनुरोध है कि अभियुक्त नदीम सलमानी उपरोक्त के विरुद्ध गैर जमानती वारण्ट जारी करने की कृपा करें।
रिपोर्ट सादर सेवा मे प्रेषित है।
(गजेन्द्र सिंह) उ०नि० थाना देहलीगेट मेरठ।"
x x x "न्यायालय विशेष मुख्य न्यायिक मजिस्ट्रेट, मेरठ।
मु०अ०सं० 303/2021 धारा 392,413,34 भा०द०सं०, थाना देहली गेट, जिला मेरठ।
02.09.2022- मु०अ०सं० 303/2021, धारा 392,413,34 भा०द०सं० थाना देहली गेट, जिला मेरठ के अभियोग में विवेचक गजेन्द्र सिंह के द्वारा अभियुक्त नदीम सलमानी पुत्र सलीम सलमानी, निवासी 242 कुए वाली गली, कोटला, मेरठ के विरुद्ध गैर जमानती वारन्ट निर्गत किये जाने हेतु प्रस्तुत किया गया है।
विवेचक द्वारा अपने प्रार्थना पत्र में कहा गया है कि अभियुक्त की गिरफ्तारी हेतु कई बार दबिश दी गयी, परन्तु वे फरार चल रहे हैं।
अभियोजन प्रपत्रों का अवलोकन किया। विवेचक के अनुसार अभियुक्त की गिरफ्तारी हेतु कई बार दबिश दी गयी, परन्तु वह फरार चल रहा है।
कार्यालय रिपोर्ट के अनुसार अभियुक्त उपरोक्त की ओर से कोई आत्म समर्पण प्रार्थना पत्र न्यायालय में लम्बित नहीं है और न ही माननीय उच्च न्यायालय का कोई स्थगन आदेश प्राप्त है। चूंकि अभियुक्त उपरोक्त मामले में वांछित है और उसके निकट भविष्य में न्यायालय में उपस्थित होने की सम्भावना नहीं है। अतः विवेचक की तरफ से प्रस्तुत प्रार्थना पत्र स्वीकार किये जाने योग्य है।
आ दे श विवेचक की तरफ से प्रस्तुत प्रार्थना पत्र स्वीकार किया जाता है । अभियुक्त नदीम सलमानी पुत्र सलीम सलमानी, निवासी 242 कुए वाली गली, कोटला, मेरठ के विरुद्ध गैर जमानती वारन्ट दिनांक 03.10.2022 के लिए जारी हो।
विशेष मुख्य न्यायिक मजि० मेरठ।"
6 . The accused applicant- Nadeem Salmani has challenged the order on the basis of judicial pronouncements in the cases of Ekta @ Bulbul Vs. State of U.P. and another, pronounced in Application U/s 482 No. 30931 of 2016 dated 17.11.2016, order passed in Criminal Revision No. 3468 of 2013 dated 12.12.2013 passed by Court No. 22 of this Court, Application U/s 482 No. 29924 of 2018 dated 29.08.2018 passed by Court No. 53, Criminal Revision No. 2827 of 2010 dated 27.07.2010 passed by Court No. 50 - (Manoj @ Ase & Others Vs. State of U.P.) and in State through C.B.I Vs. Dawood Ibrahim Kaskar & Ors. 1997 (4) Supreme 490 and argued that on the basis of aforesaid pronouncements a court of Magistrate cannot issue N.B.W against the accused-applicant to facilitate the Investigating Officer during the investigation.
7. Learned A.G.A opposed the application, but he is not willing to file counter affidavit as all the materials have already been produced by the applicant, hence heard learned counsel for the parties and perused the material available on record.
8. According to Section 73 Cr.P.C, a Magistrate is empowered to issue a warrant for the arrest of any escaped convict, proclaimed offender or any person who is accused of a non-bailable offence and is evading arrest. Such warrant may be given to any person to execute the same under Section 73 (3), it has also been mentioned that when the wanted accused is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before the Magistrate having jurisdiction in the case, unless security is taken under Section 71.
9. The applicant has filed a copy of the charge-sheet, submitted against the accused persons namely Inam, Anas, Arshad Gaddi, Naazim Shaikh and Mehtab. Mahfuz, Irfaan and Sharad Goswami are shown as absconder.
10. Learned counsel for the applicant relied on the judgment of State through C.B.I Vs. Dawood Ibrahim Kaskar & Ors. A.I.R 1997 SC 2494, in which the scope of Section 73 Cr.P.C has been discussed. In the cited case the accused was wanted for commission of various offences punishable under the I.P.C and under the TADA Act, 1987, Arms Act 1959, Explosive Substance Act, 1908 and other Acts. This case is known as BBC No. 1/93 (Bomb-blast case). Learned counsel for the applicant is solely relying on this case, therefore it would be proper to quote the relevant paras of this judgement, which are is as under:-
"6. 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)
8. 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 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)."
10. 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."
12. 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 comes 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 exercise 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 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.
13. 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.
14. 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."
x x x
20. 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)
21. 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.
23. 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 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)."
11. From the perusal of the aforesaid judgment, it is very much clear that under Section 73 of the Code, the Magistrate is empowered to issue warrant of arrest even during the investigation, if such power is withdrawn, the procedure under Sections 82 & 83 Cr.P.C which are essential to ensure the attendance of the accused would be redundant and of no use. In the cited case the Apex Court has averred that a non-bailable warrant may be issued by the Magistrate even during the investigation. Issuance of non-bailable warrant during the investigation by the Court is not forbidden.
12. In the case of D.K. Basu Vs. State of West Bengal 1997 (1) SCC 416 riders and guidelines have been laid down by the Apex Court, that when an accused is arrested he shall be produced in the court within 24 hours and thereafter the concerned Magistrate may send him either in judicial custody or in Police Custody for a period not exceeding fifteen days on the application of the I.O.
13. In this case application moved by the I.O was allowed and N.B.W was issued by the concerned Magistrate to produce the accused in the Court on 03.10.2022. Generally in cognizable and non-bailable cases as precautionary measure, I.O. move application for issuance of non-bailable warrant against the accused and when they are arrested, they are generally produced within twenty four hours before the concerned Magistrate as per the mandate of Section 57 of the Cr.P.C. and Article 22 (2) of the Constitution of India. Even if the courts hours are over, they are produced before the concerned Magistrate at their houses or before the Remand Magistrate.
14. From the perusal of the application moved by the I.O. and the impugned order, it transpires that the applicant is wanted as accused in the concerned case and the I.O. raided at his residence several times but he was found absconding. The learned Special Chief Judicial Magistrate has also mentioned this fact that since the accused is wanted in the concerned case and there is no likelihood of his appearance in the Court, he allowed the application and issued non-bailable warrant for his production on 03.10.2022. From the impugned order it is very much clear that the non-bailable warrant was issued for production of the accused in the Court. It has already been mentioned by the Apex Court that there is no bar regarding issuance of non-bailable warrant during the course of investigation. The Apex Court has clearly observed that the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person, who is evading arrest. The power of issuing a proclamation and attachment under Sections 82 and 83 can be exercised by a court only in respect of a person against whom a warrant has been issued by it. Therefore, the I.O. has to approach the court to issue warrant of arrest under Section 73.
15. In para 20, the Apex Court has again opined that Section 73 of the Code is of general obligation and that in the course of investigation a court can issue a warrant in exercise of power thereunder to present, inter-alias a person, who is accused of a non-bailable offence and is evading arrest. The Apex Court has put only a rider that such warrant cannot be issued for production of the accused before the court in aid of investigation.
16. The Apex Court has made it clear that even a Non Bailable Warrant can be issued against the accused on the application of I.O or the police, but if he is arrested, he shall be brought before the Magistrate and after perusing the case diary, if he finds sufficient material to remand the accused he shall send the accused either in judicial custody or on in police custody on the application of the I.O.
17. Learned counsel for the applicant Sri A.C. Srivastava has filed several orders of this Court, in which the matters relating to Districts Meerut, Ghaziabad and Gautam Budh Nagar, have been stayed from the Court, which are as under:-
(A). In Application U/s 482 No. 30931 of 2016 - Ekta @ Bulbul Vs. State of U.P. & Ors. Court No. 24, of this Court on 17.11.2016, has passed an order not to take coercive action against the accused in a Case under Sections 302, 201 I.P.C, Police Station Pallavpuram, District Meerut.
(B). In Criminal Revision No. 3468 of 2013 Harendra Vs. State of U.P. & Ors. Court No. 22 of this Court on 12.12.2013, in a case under Section 302 / 34 and 120-B I.P.C granted relief that till the next date of listing no coercive steps shall be taken against the revisionist.
(C). In Application U/s 482 No. 2994 of 2018 - Smt. Pragati Chaudhary @ Pragati Singhal Vs. State of U.P. & Another, Court No. 52 of this Court granted relief on 29.08.2018 that until the date of next listing, operation of the impugned order issuing the non-bailable warrant passed by the C.J.M Ghaziabad, in Case Crime No. 1439 of 2014, under Section 468 I.P.C, P.s. Kavi Nagar, District Ghaziabad, shall remain stayed.
(D). In Criminal Revision No. 2827 of 2010 - Manoj @ Ase & Ors. Vs. State of U.P, in which Court No. 50 of this Court on 27.07.2010, has passed an order not to take coercive steps against the revisionist in Case Crime No. 211 of 2010, in pursuance of the order passed under Section 73 Cr.P.C. but also added that however the investigation shall go on.
(E). In Application U/s 482 No. 36036 of 2022 - the present accused (Nadeem Salmani Vs. State of U.P. and another) the Court No. 64 has set aside the N.B.W order dated 02.09.2022, but directed that applicant shall remain available at the address disclosed in the present application and cooperation would be provided to the I.O in the pending proceedings and in the event of failure to cooperate, he may be dealt with in accordance with law.
18. This Court has some what different opinion as there is no bar for issuance of non-bailable against any accused during the investigation, if such non-bailable warrant has been issued, for bringing the accused before the concerned Magistrate/Judge within twenty four hours from the time of his/her arrest. After arrest he/she may be sent either to judicial or the police custody as the case may be or he may be enlarged on bail and the I.O is at liberty to obtain a permission regarding recording of his/her evidence from the court visiting the jail or if he/she has made any disclosure statement regarding recovery of any incriminating material, on the application of the I.O. accused may be remanded to the police custody remained for a limited period for the purpose of investigation.
19. It is noteworthy that in this case the applicant having full knowledge that he was wanted in this case as accused, neither made him available for interrogation to the I.O nor moved any form of bail application. In another similar matter he had approached this Court taking shelter of the verdict State through C.B.I. (supra) and has been granted some relief.
20. In this case, it does not appear that the application was moved by the I.O or the the impugned order was passed by the concerned Magistrate / Judge to provide the accused in the custody of the I.O for the aid in investigation. The Magistrate has issued the non-bailable warrant for presentation of the accused in the Court for 03.10.2022, therefore the order passed by the concerned Magistrate being in accordance with law is not liable to be set aside. According to this Court, the impugned order is correct in the eye of law and the application is liable to be rejected.
O R D E R
21. The Application U/s 482 is dismissed accordingly.
22. A copy of this order be sent to learned Special Chief Judicial Magistrate, Meerut for information and necessary action.
Order Date :- 12.01.2023.
Vinod.