Sheela Kumari vs The State Of Jharkhand Through ... on 11 August, 2020
"23. Now that we have found that 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, we need answer the related
question as to whether such issuance of warrant can be for his
production before the police in aid of investigation. 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
4 Cr.M.P. No.4155 of 2019
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."(Emphasis
Supplied)
and submits that the power to issue warrant of arrest has not been
conferred upon the Magistrate to aid the police in the investigation. The learned
counsel for the petitioners further relied upon the judgment of a coordinate
Bench of this court in the case of Niranjan Roy vs. The State of Jharkhand
through Secretary Cabinet (Vigilance) reported in 2013 0 Supreme (JHK) 403
and also reported in 2013 3 East Cr.C. 69, wherein in the facts of that case where
it was never reported to the court that the petitioner is evading arrest the order
directing warrant was quashed.