Gujarat High Court
Nazimuddin Fakruddin Kazi vs State Of Gujarat on 12 October, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/SCR.A/4065/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4065 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAZIMUDDIN FAKRUDDIN KAZI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 12/10/2015
ORAL JUDGMENT
The present petition is filed by the petitioner under Article 227 read Page 1 of 15 HC-NIC Page 1 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT with Art. 21 of the Constitution of India for a Writ of Mandamus or any other appropriate writ for the prayers as prayed for in detail in the petition, inter alia, that appropriate writ of mandamus or any other writ or order may be issued to quash the order under Sec. 70 and under Sec. 82 of the Code of Criminal Procedure, 1973 in C.R. No. I-12/2009 registered at Dungari Police Station (orders dated 5.6.2015 & 11.5.2015). It is also prayed that further proceedings arising out of such an order passed for warrant under sec. 70 of CrPC by the Addl. Chief Judicial Magistrate, Valsad, and also the order passed by the Chief Judicial Magistrate, Valsad for proclamation under sec. 82 of CrPC may be stayed on the grounds stated in the petition.
2. The facts of the case as narrated in the petition refer to the investigation in connection with the offence under sec. 302, 307, 120-B of the Indian Penal Code r/w sec. 25(1)A, B, 27(1)A, B of the Arms Act and sec. 135 of the Bombay Police Act.
3. Heard learned counsel Shri A.D. Shah for the petitioner. He referred to the application by the S.P., CID Crime, Gandhinagar dated 10.5.2015 and the order passed by the Addl. Judicial Magistrate, Valsad, dated 11.5.2015 for issuance of warrant under sec. 70 of CrPC. It appears that in spite of this, the warrant could not be executed as stated in another application by the CID Crime, Gandhinagar, dated 5.6.2015 to the Judicial Magistrate, Valsad that the present applicant-accused is concealing or hiding himself for which an application was given for proclamation under sec. 82 of CrPC and the same has been granted vide order dated 5.6.2015 by the 3rd Addl. Chief Judicial Magistrate, Valsad.
4. Learned counsel Shri Shah submitted that the orders are illegal and he submitted that such an order could not be passed for production of the applicant-accused before the police in aid of investigation. He referred to Page 2 of 15 HC-NIC Page 2 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT the provisions of CrPC and also heavily relied upon the judgment of the Hon'ble Apex Court reported in (2000) 10 SCC 438 in the case of State through CBI v. Dawood Ibrahim Kaskar and ors. He pointedly referred to the observations in the judgment and submitted that if the complaint is investigated under sec. 155 of CrPC, then it can resort to such proceeding as is required to get an order of the competent magistrate and can exercise the power of investigation in respect of cognizable offence, but he cannot arrest without warrant and therefore may have to apply for the warrant. Therefore, an emphasis has been made by learned counsel Shri Shah that there is total lack of jurisdiction or power to issue either the warrant under sec. 70 or the proclamation under sec. 82 of CrPC for the purpose of production of the applicant-accused in aid of the investigation. He submitted that the court could not come in the picture for the procurement of the accused before the police or in aid of investigation at that stage. He has also referred to and relied upon the judgment of the co-ordinate Bench (Harsha Devani, J.) in Special Criminal Application No. 3366 of 2013 with Special Criminal Application No. 3370 of 2013 dated 5.12.2013 and submitted that relying upon this judgment of the Hon'ble Apex Court, the view has been taken that such a power could not be exercised.
5. Learned Public Prosecutor Shri Mitesh Amin referred to the background of facts as well as the relevant dates and submitted that in spite of the order dated 11.5.2015 for the warrant, as the applicant had concealed himself and could not be traced for the purpose of investigation, an application under sec. 82 dated 5.6.2015 as stated in detail was made. Therefore, by the order dated 5.6.2015 the proclamation was issued. He submitted that as the petitioner is causing delay and is absconding, the investigating agency has to resort to this provision which have been provided by the statute (CrPC) and therefore it cannot be said that there is total lack of inherent powers or the orders are illegal.
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6. Learned Public Prosecutor Shri Amin submitted that thus the reliance placed on the observations made by the Hon'ble Apex Court in the case of State through CBI v. Dawood Ibrahim Kaskar and ors (supra) has to be read in background of the facts. He referred to the observation that the provisions of sec. 309 has been considered in that judgment and in that background the observations have been made. He pointedly referred to the observations made in para 24, ".....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 produced 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 courts solely for the production of the accused before the police in aid of investigation."
7. Learned Public Prosecutor Shri Amin referred to sec. 309 (2) of CrPC and submitted that the statute provides for the course to be adopted and in that case before the Hon'ble Apex Court it was a different situation that when the chargesheet was filed or proceedings were to be initiated Page 4 of 15 HC-NIC Page 4 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT Dawood Ibrahim Kaskar was absconding. He submitted that therefore even according to this judgment, it cannot be said that there is any illegality. He referred to the provisions of sec. 70 and submitted that the form of warrant produced with the schedule refers to the fact that the court is authorised for issuance of such warrant. Similarly, he referred to sec. 82 and submitted that, as stated, if the court has a reason to believe that a person against whom the warrant has been issued by it has absconded or concealing himself so that the warrant cannot be executed, then, the court may publish a written proclamation. He also emphasised the observation, "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 in spite of its best efforts 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."
8. He, therefore, submitted that the present application may not be entertained. Similarly, he submitted that the order of this High Court in Special Criminal Application No. 3366 of 2013 with Special Criminal Application No. 3370 of 2013 has to be read in context of the background and facts of the case.
9. In rejoinder, learned counsel Shri Shah referred to the provisions of sec. 70 and also the form of warrant and submitted that it refers to the charge and the words "accused of" are not used meaning thereby it has no application at the stage of investigation and it is only at a later stage the Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT warrant could be issued by the court and not for the aid of the investigation. Learned counsel Shri Shah referred to the papers including the applications and submitted that there has to be material and evidence before exercise of powers are justified. He pointedly referred to the applications and the impugned orders and submitted that there is no material referred which could justify the exercise of power for issuance of warrant. He submitted that the satisfaction has to be reached by the court on the basis of material which is not there.
10. In view of these rival submissions, it is required to be considered whether the present petition deserves consideration.
11. Before adverting to the real issue, the first aspect with regard to the appropriate writ and the prayer clause is required to be considered. Though the Writ of Mandamus has been prayed for, it would not be maintainable as the petition is under Art. 227 and though Art. 21 is mentioned, basically it could be a Writ of Certiorari. It is well-settled with regard to the nature of writs which can be issued as prerogative writs and the mandamus qua the authority cannot be asked without there being any demand or representation to the authority and failure of the authority to comply with the same. In the facts of the case, rather in a criminal proceedings, where CrPC is a complete code by itself providing for the procedure as well as different stages for the criminal trial. Therefore, one is required to focus on the different stages of criminal trial or investigation with reference to the provisions of CrPC. It cannot be said that the Code does not envisage for any such powers to the Magistrate for issuance of warrant or proclamation before the stage of trial. In fact, as it has been relied upon by learned counsel Shri Shah on the judgment in the case of State through CBI v. Dawood Ibrahim Kaskar and ors. (supra) it has been clearly observed about the role of the Magistrate during the investigation.
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12. Further, as provided in sec. 73, the warrant could be issued to any person for arrest of (i) escaped convict, (ii) a proclaimed offender, and
(iii) a person who is accused of a non-bailable offence and is evading arrest. Therefore, when the person is hiding or concealing himself the warrant is issued as stated above. However, if the person is evading his arrest and still the warrant could not be issued, then, further steps as provided under sec. 82 for proclamation could not be taken. Thus, it contemplates a situation where a person is accused of non-bailable offence and is evading his arrest, necessary steps could be taken by the investigating agency to arm itself with the warrant for the arrest by the Magistrate. Thus, on one hand the investigating agency is armed with the powers of arrest pursuant to such warrant and at the same time the Magistrate has issued the warrant, the arrested person is required to be produced before the Magistrate as contemplated in the CrPC and future course of action could take place as provided in the CrPC which has also been discussed and contemplated in para 24 of the judgment in the case of State through CBI v. Dawood Ibrahim Kaskar and ors. (supra).
13. Therefore, it is after such execution of the warrant and arrest of the person who is absconding or evading arrest the consequences may follow and it is at that stage the Magistrate, in exercise of judicial discretion, may entertain the prayer of the investigating agency for the police custody or otherwise. Therefore, the submission made by learned counsel Shri Shah that the warrant of arrest under sec. 73 could not be issued by the court solely for the production of the accused before the police in aid of investigation is thoroughly misconceived inasmuch as when the scheme of the legislature by way of statutory provision of sec. 73 has contemplated and provided for issuance of warrant by the Magistrate qua any person who is accused of non-bailable offence and is evading arrest, it cannot be said that there are no such powers or there is inherent lack of Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT power for issuance of such warrant or subsequently the proclamation as provided under sec. 82 when the warrant could not be executed.
14. It is required to be mentioned that if the rule of law is required to prevail, the machinery or the procedure as contemplated in a statutory provision which has been enacted by the legislature has to be given effect by which the purpose is sought to be achieved. It cannot be interpreted by which it could curtail or negate the powers statutorily provided by the Legislature. In fact, if the rule of law is to prevail, a person like the petitioner cannot be heard to say that he would avoid or evade the arrest, cause hurdle in investigation and the investigating agency should not have any recourse. The statutory provisions as provided in sec. 82 of CrPC for the proclamation require issuance of warrant as a condition precedent and it is only then further recourse could be adopted by the investigating agency like taking further steps for attachment of the property if the person has absconded abroad. Further, it is only if such a warrant has been issued, further steps could be taken to bring him to the process of law. Therefore, even if the person has not co-operated during the investigation and is not arrested or has evaded arrest, irrespective of the stage of the investigation culminating into the charge-sheet or otherwise qua him, the warrant could be issued and the investigating agency could have further recourse. If the person accused of non-bailable offence has evaded his arrest or co-operation in the investigation, the investigating agency may have to follow such procedure to secure presence of such person who is accused of commission of a crime and he is brought within the process of law. At the same time, care has been taken to balance the rival claims or right of a person accused that once he is arrested he is required to be produced before the Magistrate as contemplated in the Code and not before the investigating agency. Thereafter, in exercise of judicial discretion, appropriate order could be passed with regard to further course of action and appropriate order with Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT regard to exercise of power under sec. 167 for either police custody or judicial custody and/or also for bail under sec. 439 of CrPC could be made.
15. A useful reference can be made to the judgment of the Hon'ble Apex Court in the case of Dawood Ibrahim (supra) wherein it has been observed specifically as referred to above, "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 thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest...... On such production, the Court may either release him on bail under Section 439 or authorize 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 163 (3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorization 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, it cannot be said that warrant of arrest could be issued by the Courts solely for the production of the accused before the police in aid of investigation." (emphasis supplied) This clearly suggests that what has been made clear is that a warrant could be issued as it is of general application in the course of investigation to apprehend a person who is accused of non-bailable offence and is evading arrest. Thus, it has two aspects, (i) a person is accused of non-bailable offence, and (ii) he is evading arrest.
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16. It does not speak of arrest of a person and production before the police in aid of investigation. This has been discussed in this para making it clear that the Magistrate plays a role even during the investigation and could exercise the power and issue a warrant of arrest under sec. 73 of CrPC. However, it has been made clear that on such production before the court after the arrest the court may have recourse either under sec. 439 granting bail or under sec.167 authorizing custody (either police or judicial). This itself suggests that there is no lack of power or jurisdiction as sought to be canvassed. The Hon'ble Apex Court, on the contrary, has made it clear that such power of issuance of warrant under sec. 73 is justified. Further, it has been emphasised that in such case once the warrant is used for production of a person accused of non-bailable offence and is evading arrest to be produced before the court and not before the police and/or the investigating agency.
17. Therefore, the bogey of such contention that the warrant could not be issued for production in aid of investigation appears to have been raised referring to the broad background of the case (Dawood Ibrahim) or some submissions made which may not have been approved. The fact remains that the Legislature or the law made by the Parliament in the form of sec. 73 empowers the court ( Magistrate) to issue such warrant in exercise of power which has also been interpreted in the same judgment relied upon by learned counsel Shri Shah in the case of Dawood Ibrahim (supra). Therefore, the submissions are misconceived.
18. In other words, what has been emphasised is that while exercise power of issuance of warrant under sec. 73 pending investigation , care has to be taken that the court/Magistrate will reach the satisfaction about sufficiency of the material and evidence justifying the issuance of warrant against the person who is accused of non-bailable offence and who is Page 10 of 15 HC-NIC Page 10 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT evading arrest. Thus, again, the court (magistrate) has to satisfy, (i) on the aspect of sufficiency of material, and (ii) whether the person is evading arrest or is not cooperating with the investigating agency from the material placed before it.
19. It may also be noted that the same issue has been considered in a judgment reported by the Patna High Court in the judgment reported in 2009 LawSuit(Pat) 464 in the case of Randhir Sharma alias Rupesh v. State of Bihar and ors. and the Hon'ble Patna High Court framed the following points for determination,
(i) Whether pending investigation warrant of arrest can be issued against the person who is an accused of non-bailable offence and is evading arrest?
(ii) Whether in the facts of the instant case it can be said that the requisition filed by the police and the order passed by learned Magistrate for arrest of an accused was in aid of investigation?
(iii) Whether the impugned order satisfied the requirement of law necessary for passing an order under Section 73, Cr.P.C?
As could be seen from the judgment, Issue No. 1 is answered in affirmative, meaning thereby, that pending investigation, warrant of arrest can be issued against a person accused of non-bailable offence and is evading arrest
20. Further, the discussion is made referring to the same judgment of the Hon'ble Apex Court in the case of Dawood Ibrahim (supra) and it has Page 11 of 15 HC-NIC Page 11 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT been observed that pursuant to the execution of warrant under sec. 73(1) CrPC he should be produced before the Magistrate forthwith. Thereafter, as stated above, recourse can be had as provided in the CrPC under sec. 167 granting police or judicial custody and thereafter bail under sec. 439. However, at that stage, balance has to be struck between the rival claims of the investigating agency and the liberty or right of and individual who is accused of a non-bailable offence. Legislature has therefore taken care to maintain this balance by providing that though the warrant is issued, such a person arrested is produced not before the investigating agency or police, but before the Magistrate and thereafter the Magistrate in exercise of judicial discretion could pass appropriate order with regard to exercise of power under sec. 167 for either police custody or judicial custody and also for bail under sec. 439 of CrPC
21. The submissions made by learned counsel Shri Shah referring to the application requires a closer scrutiny to consider whether for issuance of warrant there was a justification or not. It refers to the gravity of the offence as well as the stage of investigation and/or the position of the investigation. In the application for proclamation under sec. 82 it refers to the details about the antecedents which has a reference to 38 offences and detention under PASA.
22. Therefore, the submission made by learned counsel Shri Shah that during the stage of investigation before it has culminated into a charge- sheet qua the accused like the present petitioner, a warrant could not be issued at the instance of the investigating agency and there is total lack of power is misconceived. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in (2007) 8 SCC 770 in the case of Dinesh Dalmia v. CBI, where the Page 12 of 15 HC-NIC Page 12 of 15 Created On Thu Oct 15 01:27:23 IST 2015 R/SCR.A/4065/2015 JUDGMENT judgment in the case of State through CBI v. Dawood Ibrahim Kaskar and ors. (supra) has also been referred to while discussing about the scheme of the Code. In that case, the accused was absconding and the warrant was issued, though the focus was on the aspect of charge-sheet as to once the charge-sheet is filed, the right under sec. 167(2) proviso ceases or not and the cognizance by the magistrate. Thus, the person who is accused of a non-bailable offence is required to be brought to the book and submitted to the process of law and thereafter the court may take appropriate recourse. Again, at that time, he will have sufficient opportunity to be heard and also claim for appropriate protection of his right or liberty. Therefore, the submission made by learned counsel Shri Shah cannot be accepted.
23. The reliance placed by learned counsel Shri Shah on the judgment of the co-ordinate Bench (Harsha Devani, J.) in Special Criminal Application No. 3366 of 2013 with Special Criminal Application No. 3370 of 2013 would not have application to the facts of the case and assuming that there are other provisions in the Code like sec. 41 would not necessarily deprive the court from passing appropriate order inasmuch as such orders are required to be passed depending upon the facts of the case and the material produced. Therefore, it is a matter of discretion of exercise of powers rather than total lack of powers. In fact, the Hon'ble Apex Court in the case of State through CBI v. Dawood Ibrahim Kaskar and ors. (supra) has observed, "...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 in spite of its best efforts 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.]"
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24. Therefore, before exercising such power, the Magistrate must be satisfied and only after considering the material and totality of the circumstances with regard to the contents of the application and the requirement of law, such a warrant could be issued. In other words, the investigating agency must disclose that there is sufficient evidence to substantiate the allegations that the petitioner is accused of non-bailable offence and is evading his arrest. The court has to record the satisfaction that there is sufficient material prima facie satisfying about the involvement of the accused of such non-bailable offence and evading arrest at the same time.
25. In fact, by catena of judicial pronouncements, broad guidelines have been laid down with regard to the concept of fair trial and fair investigation. The object of the Code is that a person accused of an offence may be booked in the manner prescribed and subject to the procedure and at the same time a fair opportunity is provided.
26. Therefore, there is no lack of jurisdiction or power as sought to be canvassed. However, it will depend upon the facts in a given case where the concerned court or Magistrate is required to satisfy on the basis of material before issuance of such warrant considering the rival claims of the investigating agency and the right and liberty of the person who is accused of non-bailable offence as stated above.
27. In the circumstances, the present application cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Notice discharged. Interim relief stands vacated.
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(RAJESH H.SHUKLA, J.)
FURTHER ORDER
After the order was pronounced, learned Advocate Shri Ekant Ahuja for learned Advocate Shri A.D. Shah for the Applicant-Petitioner has requested for stay of the operation of the order to enable the Applicant -Petitioner to move the higher forum (Apex Court).
Learned Public Prosecutor Shri Mitesh Amin however objected stating that the application for anticipatory bail is also moved and therefore it may be considered about the situation that may arise.
Learned Advocate Shri Ahuja has stated that the interim relief which has already been granted and operating since July 2015 may be continued for at least 15 days to give an opportunity to the Applicant.
Therefore, having considered the facts and circumstances and the rival submissions, the operation of the order is stayed up to 27.10.2015 to enable the Applicant to have further recourse.
(RAJESH H.SHUKLA, J.) (hn) Page 15 of 15 HC-NIC Page 15 of 15 Created On Thu Oct 15 01:27:23 IST 2015