Delhi District Court
Ps: Eow Cell (Crime & Railways) vs Dawood Ibrahim Kaskar Air on 23 October, 2015
FIR No. 91/2012
PS: EOW Cell (Crime & Railways)
23.10.2015
Present: Ld. APP for State.
Victim (Counsel) in person.
None for applicant/accused.
Today the matter is listed for order on an application of applicant
Ajay Kapoor for cancellation of Non Bailable warrants issued vide order dated
19.9.2015.
The said application was filed on 12.10.2015 and Ld. Counsel for
the applicant challenged the issuance of NBW's on technical ground in view of
judgment of Hon'ble Apex Court title State Vs Dawood Ibrahim Kaskar AIR
1997 SC 2494.
Though in the application the warrants have not been challenged on
technical ground, however, during arguments the Ld. Counsel strongly relied
upon the said judgment to put forth his argument that warrants U/s 70/73 of
Cr.P.C. cannot be issued by the Court in order to assist the police in
investigation.
The question before the Court is: whether in the facts of the present
case, this Court can issue a warrant to apprehend the accused/applicant
during further investigation as four charge sheets have already been filed
in the present case?
The accused/applicant in his application has submitted that the
investigating agency has filed the first charge sheet in the present case on
19.3.2013 and that three supplementary charge sheets were filed by the
investigating agency on 28.6.2013, 31.7.2013 and 15.5.2015 and that in none of
the said charge sheets, the name of the accused was mentioned by the
investigating agency. The said fact is relevant in the present case because it
distinguishes the present case from the facts of the case of State Vs Dawood
Ibrahim Kaskar (Supra).
FIR No. 91/2012 pages1of8
In the said case of State Vs Dawood Ibrahim Kaskar (Supra) the
application of CBI for issuance of Non bailable warrants of arrest against the
accused was declined by Ld. Designated Court on the ground that charge sheet
in the said case was already filed and that though under the Criminal Procedure
Code further investigation was not barred, there was no provision therein which
entitle the investigating agency to seek for and obtain aid from the Court for the
same. While declining the said application of CBI, the Designated Court relied
upon judgment of Hon'ble High Court of Bombay in case title Mohd. Yasin
Mansuri Vs State of Maharashtra MANU/MH/0130/1994. In the aforesaid
judgment State Vs Dawood Ibrahim Kaskar, the facts of the said judgment of
Hon'ble High Court of Bombay have been mentioned in some details and it has
been stated that in the said case before Bombay High Court charge sheet was
filed against several accused, some of whom were before the Court and some
other, including Mohd. Yasin Mansuri, were shown as absconding. It is
specifically stated that on the very day the charge sheet was filed designated
Court took cognizance of the offences mentioned therein and after few months
Mohd. Yasin Mansuri was arrested by CBI at Delhi in connection with some other
offence and his warrants of arrest were obtained from the Designated Court and
upon his production before Designated Court, on the request of prosecution, he
was remanded to police custody and in those facts Hon'ble Bombay High Court
observed that issue of warrants after cognizance of an offence is taken would be
a process contemplated U/s 204(1) (b) of the Criminal Procedure Code i.e. it
would be a process to face trial and that there is no power conferred upon
Designated Court for providing for police custody after cognizance of an offence
is taken.
It may be noted here that the facts of the present case are entirely
different as in the present case none of the four charge sheets mention the name
of the accused/applicant whereas in the case before Bombay High Court the
charge sheet was filed against several accused persons including Mohd. Yasin
Mansuri.
FIR No. 91/2012 pages2of8
Hon'ble Apex Court in aforesaid judgment of State Vs Dawood Ibrahim
Kaskar has stated in para 8 that the said observations of the Hon'ble Bombay
High Court have been made too sweepingly. The relevant para of the aforesaid
judgment State Vs Dawood Ibrahim Kaskar is as under
"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
FIR No. 91/2012 pages3of8
the information and the names of the persons who appears to be
acquainted with the circumstances of the case.
In para 12 of the aforesaid judgment the Apex Court has observed that 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.
Thus even the Apex Court has observed that view taken by the Bombay
High Court as far as it related to interpretation of Section 309 was not correct as
the said view deprives investigating agency to interrogate the person arrested
during further investigation, even if it can on production of sufficient materials,
convince the Court that his detention in police custody was essential for
investigation.
The Apex Court has categorically distinguished an accused who appears
before the Court when cognizance is taken in contra distinction to accused who
is subsequently arrested in course of further investigation.
In the present case the accused/applicant was never charge sheeted and
as such he could never have appeared before the Court U/s 309 of Cr.P.C.. The
accused/applicant has himself submitted in his application that he has not been
named in any of the charge sheets filed by the investigating agency and as such
his case is not governed by section 309 Cr.P.C., rather, he is amongst second
category of accused persons who are subsequently arrested in course of further
investigation U/s 173 (8) Cr.P.C.
Apex Court in the aforesaid judgment State Vs Dawood Ibrahim Kaskar in
para 25 has categorically stated that section 73 of the Code is of the 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.
FIR No. 91/2012 pages4of8
After having made said observation in para 25 the Hon'ble Court has
stated that the said power to issue warrants, however, cannot be exercised for
the production of the accused before police (as against, before the Court) in aid
of investigation. In this sense it was observed by Apex Court in the last lines of
para 25 that "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.".
(emphasis supplied)
After making the said observation the Apex Court allowed the appeal
challenging the order of the designated Court and after setting aside the same,
directed the designated Court to dispose of the three application in the light of
the said observation of Hon'ble Apex Court. It may be noted here that the Apex
Court has not upheld the order of the designated Court by which it declined the
request of CBI for issuance of NBW's of arrest against the accused in the said
case, rather, the said order of the designated Court which was passed relying
solely upon the aforesaid judgment of the Bombay High Court in Mohd. Yasin
Mansuri Vs State of Maharashtra was set aside by the Apex Court.
Thus, in the opinion of the Court the law which has been laid down by the
Apex Court and by the Bombay High Court can be summarized as under:-
1.In case where charge sheet has not been filed by the investigating agency, there is no bar upon the Court to issue warrants U/s 70/73 of Cr.P.C. for his appearance before the Court in aid of investigation. If in such case warrants are issued and accused is arrested, he is to be produced before the Court and the Court may authorize his detention in police or judicial custody U/s 167 of the Cr.P.C.
2. In case where charge sheet has been filed against some accused FIR No. 91/2012 pages5of8 persons, but investigation is going on as regards other accused persons, there is no bar upon the Court to issue warrants U/s 70/73 of Cr.P.C. against one of the other accused persons for his appearance before the Court in aid of investigation. If in such case warrants are issued and such other accused is arrested, he is to be produced before the Court and the Court may authorize his detention in police or judicial custody U/s 167 of the Cr.P.C.
3. In case where the charge sheet has been filed against some accused persons of whom some are absconding and warrants are sought against the said accused persons1, there is no bar upon the Court to issue warrants U/s 70/73 of Cr.P.C. for his appearance before the Court, but such warrants cannot be issued in aid of investigation as the person against whom warrants have been issued is already charge sheeted and his appearance before the Court upon execution of the said warrants would be for appearance U/s 309 (2) of Cr.P.C. for the purpose of trial and not U/s 167 Cr.P.C. for the purpose of investigation. Thus, the Court cannot issue warrants U/s 70/73 Cr.P.C. against an absconding accused person, who has been charge sheeted, for the purpose of further investigation U/s 173(8) of Cr.P.C. If in such case warrants are issued and accused is arrested, he is to be produced before the Court and the Court may authorize his detention in judicial custody U/s 309(2) Cr.P.C and not U/s 167 of Cr.P.C.
4. However, in any of of the aforesaid conditions the warrants cannot be issued by the Court for the production of the accused before the police in aid of investigation. Warrants U/s 70/73 of Cr.P.C can only be issued for production of accused before the Court and not before the police. In view of the aforesaid legal position the order of issuance of warrants by the Court is not in violation of the aforesaid judgment of the Apex court in case of State Vs Dawood Ibrahim Kaskar, rather, it is in consonance with law laid down 1 Who have been charge sheeted, though absconding.
FIR No. 91/2012 pages6of8 in said judgment. Accordingly, the application of accused for cancellation of warrants is dismissed.
An application for issuance of proceedings U/s 82 Cr.P.C. was also filed by the IO on 12.10.2015, however, the same was kept pending as the warrants were challenged on technical ground. However, as today the application for cancellation of warrants has been dismissed, hence the said application is taken up for consideration.
In the application it has been submitted that despite several raids being conducted at various addresses of applicant accused and despite the fact that his bail application has been dismissed by Hon'ble Delhi High Court vide order dated 31.8.2015, he is absconding in order to evade arrest. In order dated 12.10.2015 it has been stated that case diary was shown by the IO wherein visits by the IO at the address of accused/applicant were depicted and as per the case diary the accused was not found present at his address.
The accused is well aware of the proceedings before the Court and is also aware of the fact that the warrants have been issued by the Court against him, as he has challenged the said warrants by moving an application, but despite that and despite the order of Hon'ble Delhi High Court wherein it is categorically mentioned that custodial interrogation of applicant/accused is necessary for effective investigation, the accused has not appeared before the investigating agency or before this Court.
Therefore, there are several reasons for the Court to believe that the accused/applicant against whom warrants have been issued is deliberately concealing himself so that such warrants do not get executed. Accordingly, in order to ensure his presence, resort to section 82 of Cr.P.C. is necessary. Accordingly, process U/s 82 Cr.P.C. be issued against the accused, to be executed at least 30 days before the next date of hearing and the proclamation be also published in a daily newspaper having circulation in NCT of Delhi.
As application of cancellation of warrants has been dismissed today, therefore, the accused/applicant is given an opportunity to surrender before this FIR No. 91/2012 pages7of8 Court within two weeks from today and in case he fails to surrender within the said period, process U/s 82 Cr.P.C. would be issued against him on 7.11.2015, to be executed/published on or before 7.12.2015 for the appearance of the accused before the Court 7.1.2016.
Put up on 7.1.2016.
Copy of the order be given dasti to the applicant/accused and prosecution.
(SAURABH PRATAP SINGH LALER)
ACMM (EAST)/KKD/23.10.2015
FIR No. 91/2012 pages8of8