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Showing contexts for: dawood ibrahim kaskar in Nazimuddin Fakruddin Kazi vs State Of Gujarat on 12 October, 2015Matching Fragments
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 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.
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R/SCR.A/4065/2015 JUDGMENT
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 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."
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.