Allahabad High Court
Avneesh Mishra vs State Of U.P. & Others on 8 November, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 12 Case :- MISC. SINGLE No. - 5781 of 2013 Petitioner :- Avneesh Mishra Respondent :- State Of U.P. & Others Counsel for Petitioner :- Anil Kumar Tiwari,Praveen K. Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Tripathi (II),J.
1 This writ petition has been filed by Avneesh Mishra for a prayer of quashing the order dated 24.11.2011 passed by Additional Chief Judicial Magistrate Vth, Court No. 29, Lucknow and also for quashing the order dated 8.8.2013 passed by Sessions Judge, Lucknow in Criminal Revision No. 389 of 2013.
2. Heard Sri A. K. Tiwari, learned counsel for the petitioner and also Sri Devendra Singh, learned A.G.A. for the State.
3. It has been argued by learned counsel for the petitioner that petitioner was arrested by the police of Police Station Krishna Nagar in Case Crime No. 507 of 2011 under Section 406/420/506 I.P.C. on 21.11.2011 and this Hon'ble Court granted bail to the petitioner, vide order dated 22.2.2013. In the meantime, the Assistant Sub Inspector of Police Station Khadodara, P.S. Surat City (Gujarat) moved an application alongwith a photo copy of the non-bailable warrant dated 29.7.2008 before the Magistrate for custody remand of the petitioner. That non-bailable warrant was issued by Chief Judicial Magistrate, Surat (Gujarat) on 29.7.2008 and the application was moved by that Assistant Sub-Inspector on 24.11.2011. On receiving that application the Addl. Chief Judicial Magistrate passed the impugned order and directed the Superintendent of Jail, Lucknow that in case of release of the petitioner in Case Crime No. 507 of 2011 an information will be given on the fax number/phone number mentioned in the application. It was further argued that on the basis of that order, even after, release of the petitioner on bail in Case Crime No. 507 of 2011, Police Station, Krishna Nagar, District Lucknow, the petitioner is not being released. It was further submitted that the warrant which is alleged to be annexed with the application is a photo copy and not the original. It was also argued that no warrant of another state has to be addressed to the Judicial Magistrate/Chief Judicial Magistrate of the State of any district. It was also submitted that application given by that Assistant Sub-Inspector was in violation of Sections 70, 72, 78 and 79 of the Criminal Procedure Code and the Court below has treated the warrant under Section 70 Cr.P.C. to be under Section 267 Cr.P.C..
4. Learned A.G.A. has objected to the argument and has stated that though the warrant issued was not submitted before the Court in original but process adopted by the Magistrate is fully legal and also Revisional Court has not committed any illegality in dismissing the criminal revision.
5. Before proceeding further in the matter it is necessary to reproduce the provision of Sections 70, 72, 78 and 79 of the Criminal Procedure Code :
70. Form of warrant of arrest and duration - (1) Every warrant of arrest issued by the 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.
72. Warrants to whom directed. - (1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.
78. Warrant forwarded for execution outside jurisdiction. - (1) when a warrant is to be executed outside the local jurisdiction of the Court issuing it, such court may, instead of direting the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive magistrate or District Superintendent of Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under Section 81 to decide whether bail should or should not be granted to the person.
79. Warrant directed to police officer for execution outside jurisdiction. - (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.
6. A perusal of the warrant (Ext. 4 to the writ petition) reveals that the Chief Judicial Magistrate, Surat has directed Police Inspector, Umra Police Station, Surat City (Gujrat) to arrest Avinesh Ujaval Ramashankar Mishra, resident of Juni Sabji Mandi, Ariy Bhawan, Lalganj, District Rae Bareli. This warrant is signed dated 29.7.2008.
7. According to Section 78 of Criminal Procedure Code when a warrant is to be executed outside the local jurisdiction of the Code issuing it, such court may, instead of directing the warrant to a police station within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction, it is to be executed.
8. Section 79 of the Code of Criminal Procedure makes it very clear that when a warrant directed to a Police Officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or or to a Police Officer not below the rank of an Officer-In-Charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
9. It is pertinent to note here that petitioner was released on bail by this Court in Case Crime No. 507 of 2011, under Section 406, 420 and 506 I.P.C., Police Station Krishna Nagar, District Lucknow vide order dated 22.2.2013. The impugned order passed by the Magistrate has only directed the Pairwikar, Office Clerk, Investigating Officer, Superintendent of Jail, Lucknow to inform that a release order has been received. The impugned order dated 24.11.2011 does not mention that Avneesh Mishra is not to be released from jail when release order in Case Crime No. 507 of 2011, Police Station Krishna Nagar, District Lucknow has been received.
10. Warrant under Section 70 Cr.P.C. cannot be equated with warrant under Section 267 Cr.P.C. (which is generally called warrant 'B') There is separate form of warrant under Section 267 Cr.P.C., which is Form No.36, Schedule II of Cr.P.C. The form for warrant under Section 70 Cr.P.C. is given in Form No.2 of Schedule II of Cr.P.C. The wordings are remarkably different.
11. Section 267 Cr.P.C. is reproduced below: -
"267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,-
(a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or
(b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.
(2) Where an order under sub- section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub- section (2) shall be accompanied by a statement of the facts which, in the opinion of Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order."
12. A perusal of the record reveals that the Assistant Sub-Inspector has moved an application directly to the Additional Chief Judicial Magistrate Vth, District Lucknow instead of taking it for endorsement to an Executive Magistrate or a Police Officer not below the rank of Officer-In-Charge of Police Station at Lucknow. Since the matter is confined to the legality of the impugned order, hence, I am not going into merit of other facts but, prima facie, the order dated 24.11.2011 has been passed in sheer ignorance of law. The Sessions Judge, who has heard the arguments, has not also considered the above provisions and has wrongly dismissed the Criminal Revision.
13. The detention of the petitioner in jail after release on bail after filing bail bonds in case crime no.507 of 2011, Police Station Krishna Nagar, District Lucknow will be deemed to illegal, if no warrant under Section 267 Cr.P.C. has been received by Superintendent of Jail, and he is not detained in jail in any other case on proper and legal warrant.
14. From the above discussions, the orders dated 24.11.2011 and order dated 8.8.2013 are quashed. The Magistrate concerned is directed to pass a fresh order in the light of observation made above and according to law.
Order Date :- November 8, 2013 Anupam