Jharkhand High Court
Pawan Kumar Dhoot vs Central Bureau Of Investigation on 1 May, 2013
Equivalent citations: 2013 (3) AJR 523
Author: R.R.Prasad
Bench: R.R.Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 92 of 2013
Pawan Kumar Dhoot........................ Petitioner
Versus
Central Bureau of Investigation ............ Opp. Party
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Coram: Hon'ble Mr. Justice R.R.Prasad
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For the Petitioner : M/s. Indrajeet Sinha, Advocate
Mr. K. Sarkhel, Advocate
For the CBI : Md. Mokhtar Khan, ASGI
.......
3./01.05.2013This application has been filed for quashing of the order dated 15/04/2013, passed by the Special Judge, CBI, Ranchi, in R.C. 2 (S) of 2012AHDR, whereby and whereunder nonbailable warrant of arrest has been ordered to be issued against the petitioner.
Learned counsel appearing for the petitioner submits that when some of the persons were found indulging themselves in Horse Trading to manoeuvre the process of Election of Rajya Sabha, 2012, one F.I.R. was lodged but the petitioner was never made an accused. In course of investigation, whenever CBI called the petitioner for interrogation, he did appear before the CBI. Recently, a notice had been issued under Section 160 Cr.P.C., whereby the petitioner was called upon to appear before the Investigating Officer on 04/04/2013 for the purpose of his interrogation. That order was challenged before this Court in W.P. (Cr.) No. 81 of 2013, by taking plea that on one hand, the petitioner is being taken to be an accused but on the other hand, the notice is being issued under Section 160 Cr.P.C., which is against the law laid down in a case of "State Represented by Inspector of Police & Othersversus N.M.T. Joy Immaculate [(2004) 5 SCC 729]".
That matter was taken up for hearing on 12/04/2013, on which date the statement was made on behalf of the CBI that the petitioner is not being treated as an accused. Keeping in view that statement, that application was disposed of. Subsequently, the CBI filed a requisition before the Court concerned stating therein that certain materials, showing involvement of the petitioner in the crime, have been collected against him and hence a prayer was made for issuance of warrant of arrest. Thereupon, the Court passed an order on 15/04/2013, for issuance of the warrant of arrest (nonbailable) after recording that ample materials have been collected against the petitioner as an accused. That order has been challenged as it never appears to be in consonance with the provisions as contained in Section 73 Cr.P.C.
Learned counsel further submits that if the CBI wants to interrogate the petitioner, he is ready to appear before the CBI for giving his statements provided that he be arrested.
Upon it, Mr. Khan, learned counsel appearing for the CBI, submits that there has been no dispute that the CBI does have power to arrest an accused in a case of cognizable offence without there being any warrant of arrest. At the same time, if an accused avoids and evades his arrest in a nonbailable offence, the CBI can get the warrant of arrest issued against the accused and since, this petitioner did not appear pursuant to notice issued under Section 160 Cr.P.C., there was no option left for the CBI but to approach the Court to get the warrant of arrest issued and, therefore, the order under which warrant of arrest has been issued never warrants to be quashed.
At the same time, in reply to the submissions made on behalf of the petitioner that the petitioner is ready to appear before the CBI for his interrogation, it was submitted after taking instructions from the Officer of the CBI, who is present in the Court, that if the petitioner would appear on 6th May 2013 before the CBI for the purpose of interrogation, he would not be arrested.
In the context of the submissions advanced on behalf of the parties, one may refer to the provision of Section 73 of the Code of Criminal Procedure, which 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 nonbailable 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 of arrest of three classes of persons, namely, (i) escaped convict (ii) a proclaimed offender and (iii) a person who is accused of a nonbailable offence and is evading arrest.
Their Lordships in a case of "State through CBI v. Dawood Ibrahim Kaskar [1997 (2) East Cr. Case 124 (SC): AIR 1997 SC 2494]"
having taken into consideration the aforesaid provision as enshrined under Section 73 of the Code of Criminal Procedure and also recommendation of the Law commission in its 41st report did observe 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 noncognizable 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 noncognizable and nonbailable offence, [like Section 466 or 467 (part1) 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 nonbailable 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.
Thus, the question which is to be considered as to whether warrant of arrest issued against the petitioner is in consonance with the provision of Section 73 (1) of the Code of Criminal Procedure or not?"
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.
In this context, I may refer to a decision rendered in a case of "Raghuvansh Dewanchand Bhasin versus State of Maharashtra and Another [(2012) 9 SCC 791]", wherein their Lordships observed as follows: "10. It needs little emphasis that since the execution of a nonbailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case it is warranted. The courts have to be extracautious and careful while directing issue of non bailable warrant else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the 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. Indeed, it is a complex exercise. As Cardozo, J. puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice."
11. Be that as it may, it is for the court, which is chothed with the discretion to determine whether the presence of an accused can be secured by a bailable or nonbailable warrant to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the lawenforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding."
Coming to the fact of the case, it does appear that when a notice was issued under Section 160 Cr.P.C. calling upon the petitioner to appear before the Investigating Officer on 04/04/2013, the petitioner did respond to that notice whereby it was intimated to the Investigating Officer that for some reason it would not be possible for the petitioner to appear on 04/04/2013. However, that notice was challenged before this Court by taking plea that the petitioner is being treated to be an accused and still notice under Section 160 Cr.P.C. has been issued. However, on the date of hearing it was stated on behalf of the CBI that the petitioner on the date when the notice was issued, was never an accused. At the same time, since the force of the notice had already got expired, it was stated before the Court that no cause of action does survive.
Keeping in view the submissions, made on behalf of the CBI, that application was disposed of. But it is quite strange to note that only after two days a requisition was submitted before the Court stating therein that sufficient materials have been collected against the petitioner showing his culpability. Upon it, a notice was ordered to be issued vide its order dated 15/04/2013, which never appears to be in consonance with the provisions as contained in Section 73 Cr.P.C. as it is never the case of the prosecution that the petitioner is the escaped convict or proclaimed offender nor it is the case that the petitioner is evading his arrest rather it is the case of the CBI that the petitioner is evading investigation, but that also does not seems to be correct as whenever the CBI called the petitioner, he did respond, which fact has been admitted in the counter affidavit. In such situation, the petitioner cannot be said to have been evading investigation.
Under the circumstances, the order impugned is hereby set aside. However, keeping in view the submissions made on behalf of the parties, the petitioner is directed to appear before the Investigating Officer on 6 th May 2013 in between 10:30 A.M. to 12:00 Noon, so that he be interrogated by the CBI. Thereafter, the petitioner would deposit his Pass Port before the Court concerned on or before 8th May 2013, so that he may not leave the country. Till 8th of May 2013, the petitioner would not be arrested.
It goes without saying that the CBI does have every power to arrest a person, who is an accused in accordance with law.
Thus this application stands disposed of.
(R.R.Prasad, J) Mukund/cp.3