State
Through CBI Vs. Dawood Ibrahim Kaskar & Ors [1997] INSC 529 (7 May 1997)
M.K.
MUKHERJEE, G.T. NANAVATI, B.N. KIRPAL
ACT:
HEADNOTE:
Present:
Hon'ble
Mr.Justice M.K. Mukherjee Hon'ble Mr.Justice G.T. Nanavati Hon'ble Mr.Justice
B.N. Kirpal Ashok Desai, Attorney General, and Altaf Ahmad, Additional
Solicitor General, Pallav Shishodia, P. Parmeswaran, Advs.
with
them for the appellant.
Kapil Sibal,
Sr. Adv. (A.C.), Ashok Grover, Sr. Adv. Rajiv Sharma, Adv. (A.C.), T.C. Sharma,
Ajay Sharma and Ms. Neelam Sharma, Advs., with them for the Respondents.
The
following Judgment of the Court was delivered:
M.K.
MUKHERJEE, J.
The
principal question that is required to be answered in these appeals is when and
under what circumstance a Court can invoke the provision of Section 73 of the
Code of Criminal Procedure, 1973 (`Code' for short). The question arises in
this way.
On March 12, 1993 a series of bomb explosions took
place in and around the city of Bombay which result in the death of 257 persons, injuries to 713 persons and
damage to properties worth Rs. 27 crores (approximately). Over the explosion 27
criminal cases were registered and on completion of investigation a composite
charge-sheet was forwarded to the Designated Court, Greater Bombay on November
4, 1993 against 198 accused persons, showing 45 of them absconders, for
commissioner of various offences punishable under the Indian Penal Code, the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (`TADA' for short)
Arm Acts, 1959, Explosives Substances Act, 1908 and other Acts. On that
charge-sheet the Designated court took cognizance and the case registered
thereon was numbered as B.B.C. (Bomb Blast Case) No.1 of 1993.
A few
days thereafter - on November
11, 1993 to be precise
- the Government of India, with the consent of the Government of Maharashtra,
issued a notification entrusting further investigation in the above case to
Delhi Special Police Establishment (CBI) under the provisions of Section 5 of
the Delhi Special Police Establishment Act, 1946.
Pursuant
thereto CBI registered a case being No. R.C. 1 (5)/93/S.T.F. Bombay on November 19, 1993 and took up further investigation with permission of the Designated Court.
In
course of such investigation CBI apprehended Mohd.
Salim
Mira Moiuddin Shaikh @ Salim Kutta, one of the absconders mentioned in the
charge-sheet, on July
24, 1995.
He
made a confessional statement before Shri S.K. Saikia, Deputy Inspector General
of Police, CID, Ahmedabad, which was recorded by him on August 18 and 19, 1995
under Section 15 of TADA. In that confession he disclosed that the respondent
Nos. 2 to 7 herein (hereinafter referred to as the `respondents) had taken
active part in the criminal conspiracy which was the subject matter of B.B.C.
No. 1 of 1993. Thereafter on May 2, 1996, the CBI moved an application before
the Designated Court (Misc. Application No. 201 of 1996) wherein it stated that
following the disclosure of the involvement of the respondents in the offences
in question, raids has been conducted at their known hideouts to arrest them
but none could be apprehended in spite of best efforts as they were
deliberately evading their arrest to escape the clutches of law and,
accordingly, prayed for issuance of non-bailable warrants of arrest against
them to initiate further proceedings in the matter to apprehend them and/or to
take further action to declare them as proclaimed offenders. Two other
applications (Misc. Application Nos. 210 and 211 of 1996) were thereafter moved
on June 3, 1996 for publication of written proclamations under Section 8(3)(a)
of TADA as also for issuance of open dated non-bailable warrants of arrest so
that `Red Corner Notices' might be issued against them. According to CBI such
notices are required to be got issued by INTERPOL to seek police assistance in
a foreign country to locate and apprehend fugitives.
When
the three applications came up for hearing a learned Advocate who was appearing
for some of the persons arraigned in B.B.C. No. 1 of 1993 submitted before the Designated Court they were entitled to copies of the
applications and a right of hearing on their merits in the matter. The Designated Court accepted his submission; and on
receipt of the copies of the application the learned Advocate filed a rejoinder
thereto. After hearing the parties the Designated Court, by its order dated August 1, 1996, rejected the applications. The
above order is under challenge in these appeals preferred at the instance of
CBI.
From
the impugned order we find that before the Designated Court it was submitted on
behalf of CBI that since it was making further investigation into the offences
in respect of which chargesheet has earlier been submitted and since the
presence of the respondents, who were absconding, was absolutely necessary for
ascertainment of their roles, if any, in commission of the offences, it was
felt necessary to file the applications. It was further submitted that only
after warrants and/or proclamations as prayed for were issued, that it (CBI)
would be able to take further coercive measure to compel them to appear before
the Investigating Agency for the purpose of intended further investigation.
According to CBI under Section 78 of the Code and Section (3)(a) of TADA the Designated Court was fully empowered to issue
warrants of arrest and proclamations. In rejecting the above contention the Designated Court held that after cognizance was
taken in respect of an offence process could be issued to the persons accused
thereof only to compel them to face the trial but no such process could be issued
by the Court in aid of investigation under Section 73 of the Code. According to
the Designated Court, though under code further
investigation was not barred there was no provision therein which entitled the
Investigating Agency to seek for and obtain aid from the Court for the same.
Since the above findings were recorded by the Designated Court relying solely
upon the judgment of the Bombay High Court in Mohammad Yasin Mansuri vs. State
of Maharastra. (1994) Crl.L.J. 1854, it will be necessary to refer to the same
in some details. In that case investigation into an offence of murder and other
related offences was taken up initially by the Officer-in-Charge of Byculla
Police Station and thereafter by a Deputy Commissioner of Police (DCP) of CID.
During
the investigation the Designated
Court, on the prayer
of the DCP, issued non-bailable warrants for apprehension of some of the
accused involved in those offences. Thereafter a charge-sheet came to be filed
against several accused, some of whom were before the Court and some other
including Mansuri (the petitioner before the High Court) were shown as
absconding. In the very day the charge-sheet was filed Designated Court took cognizance of the offences
mentioned therein. Few months later Mansuri came to be arrested by the CBI, Delhi in connection with some other
offence. On receipt of that information the DCP filed an application before the
Designated Court for warrants of arrest and
production of Mansuri before it. The prayer was allowed and in due course Mansuri
was brought to Bombay and handed over to DCP. On the
following day Mansuri was produced before the Designated Court; and on such production the prosecution prayed for remand
of Mansuri to police custody. The prayer was allowed and the Designated Court remanded him to police custody, but
kept the order in abeyance for a few days to enable Mansuri to challenge the
same in a superior court. Assailing the above order of the Designated Court, Mansuri moved the Bombay High
Court. Before the High Court it was submitted on behalf of Mansuri that once
investigation into an offence was complete and a charge-sheet was filed, the
provisions of Section 309 of the Code came into operation and sub-section (2)
of the said Section left no discretion to a Court. The only course open to the
Court then was to remand the accused to judicial custody. It was further
submitted that whereas Section 167 conferred a discretion upon the Court of authorising
detention of an accused either in judicial custody or police custody such discretion
was completely absent in Section 309 of the Code. Accordingly, it was submitted
that the order passed by the Designated Court
granting Mansuri to Police custody was without jurisdiction and liable to be
set aside. In accepting the above contention and quashing the impugned order
the High Court firstly observed:
"It
would, therefore, follow that the warrants which were issued by the Designated Court for production of the petitioner
could not have been in aid of investigation but could only have been by way of
process issued under Section 204 of the Code of Criminal Procedure.
Issue
of warrants after cognizance of an offence is taken would be a process
contemplated under Section 204(1)(b) of the Code, i.e. it would be a process to
face trial.
Indeed.
We do not find any provision contained in the Code for issue of warrants of
arrest and custody of accused for the purpose of, or in aid of, investigation.
The
process contemplated is a process to face trial." (emphasis supplied) The
High Court further observed:
"We
are conscious that the view we are taking is likely, in certain case such as
the present one, to hamper investigation. However, this is not a matter for us.
We have construed the provision of the Code and have found that no power is
conferred for providing for police custody after cognizance of the offence is
taken." (emphasis supplied) In view of the provision of Chapter XII and
those of Section 309(2) of the Code we are constrained to say that the above
quoted observations have been made too sweepingly.
Chapter
XII relates to information to the police and their powers to investigate. Under
Section 154 thereof whenever an Officer-in-Charge of a police station receives
and information relating to the commission of a cognizable offence he is required
to reduce the same in writing and enter the substance thereof in a prescribed
book. Section 156 invests the Officer-in-Charge of a police station with the
power to investigate into cognizable offences without the order of a Magistrate
and Section 157 lays down the procedure for such investigation. In respect of an
information given of the commission of a non-cognizable offence, the
Office-in-charge required under Section 155(1) to enter the substance thereof
in the book so prescribed but he has no power to investigate into the same
without an order of the competent Magistrate. Armed with such an order the
Officer-in-charge can however exercise all the power of investigation he has in
respect of a cognizable offence except that he cannot arrested during investigation
has to be dealt with by the investigation Agency, and by the Magistrate on his
production before him, is provided in Section 167 of the Code. The said Section
contemplates that when the investigation cannot be completed within 24 hours
fixed by Section 57 and there are grounds to believe that the charge levelled
against the person arrested is well founded it is obligatory on the part of the
Investigation Officer to produce the accused before the nearest Magistrate. On
such production the Magistrate may authorise the detention of the accused
initially for a term not exceeding 15 days either in police custody, or in
judicial custody. On expiry of the said period of 15 days the Magistrate may
also authorise his further detention otherwise than in police custody if he is
satisfied that adequate grounds exist for such detention. However, the total
period of detention during investigation cannot be more than 90 days or 60
days, depending upon the nature of offences mentioned in the said Section.
Under Sub-section (1) of Section 173 the Officer-in-charge is to complete the
investigation without unnecessary delay and as soon as it is completed to
forward, under Sub-section (2) thereof, to the competent Magistrate a report in
the form prescribed setting forth the names of the parties, the nature of the
information and the names of the persons who appears to be acquainted with the
circumstances of the case. Sub-Section (8) entitles the Officer-in-Charges to
made further investigation and it reads as under:
"Nothing
in this section shall be deemed to preclude further investigation in respect of
an offence after a report under Sub- section (2) has been forward to the
Magistrate and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he shall forward
to the Magistrate a further report to the report regarding such evidence in the
form prescribed, and the provisions of sub-section (2) to (6) shall, as far as
may be, apply in relation to such report or reports as they apply in relation
to a report forwarded under sub- section (2)." In H.N. Rishbud vs. State
of Delhi, [AIR 1955 SC 196], this Court dealt with the definition of
`investigation' under the Code of Criminal Procedure, 1898 (hereinafter referred
to as the `old Code'), which is same under the new Code and after analysing the
provisions of Chapter XIV of that Code (which corresponds to Chapter XII of the
Code) stated:
"Thus
under the Code investigation consists generally of the following steps: (1)
Proceeding to the spot, (2) Ascertainment of the facts and circumstance of the
case, (3) Discovery and arrest of the suspected offender, (4) Collection of
evidence relating to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit, (b) the search of
places or seizure of things considered necessary for the investigation and to
be produced at the trial, and (5) Formation of the opinion as to whether on the
material collected there is a case to place the accused before a Magistrate for
trial and if so taking the necessary steps for the same by the filing of a
charge- sheet under Section 173." Though under the old Code there was no
express provision - like sub-section (8) of Section 173 of the Code -
statutorily empowering in Police to further investigate into an offence in
respect of which a charge-sheet has already been filed and cognizance taken
under Section 190(1)(b), such a power was recognised by this Court in Ram Lal Narang
vs. State [AIR 1979 SC 1791]. In exemplifying the situation which may prevail
upon the police to take up further investigation and the procedure the Court
may have to follow on receipt of the supplemental report of such investigation,
this Court observed:
"It
is easy to visualise a case where fresh material may come to light which would
implicate persons not previously accused or absolve persons already accused.
When it comes to the notice of the investigating agency that a person already
accused of an offence has a good alibi, is it not the duty of that agency to
investigate the genuineness of the plea of alibi and submit a report to the
Magistrate? After all the investigating agency has greater resources at its
command than a private individual. Similarly, where the involvement of persons
who are not already accused comes to the notice of the investigating agency,
the investigating agency cannot keep quiet and refuse to investigate the fresh
information.
It is
their duty to investigate and submit a report to the Magistrate upon the
involvement of the other persons. In either case, it is for the Magistrate to
decide upon his future course of action depending upon the stage at which the
case is before him. If he has already taken cognizance of the offence, but has
not proceeded with the enquiry of not proceeded with the enquiry of trial, he
may direct the issue of process to persons freshly discovered to be involved
and deal with all the accused, in a single enquiry of trial. If the case of
which he has already proceeded to some extent, he may take fresh cognizance of
the offence disclosed against the newly involved accused and proceed with the
case as a separate case. What action a Magistrate is to take in accordance with
the provisions of the Code of Criminal Procedure in such situations is a matter
best left to the discretion of the Magistrate." In keeping with the
provisions of Section 173(8) and the above quoted observations, it has now to be
seen whether Section 309(2) of the Code stands in the way of a Court, which has
taken cognizance on an offence, to authorise the detention of a person, who is
subsequently brought before it by the police under arrest during further
investigation, in police custody in exercise of its power under Section 167 of
the Code. Section 309 relates to the power of the Court to postpone the
commencement of or adjournment of any inquiry of trial and sub-section (2)
thereof reads as follows:
"If
the Court, after taking cognizance of an offence, or commencement of trial,
finds it necessary or advisable to postpone the commencement of, or adjourn,
any inquiry or trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit, for such time as
it considers reasonable, and may be a warrant remand the accused if in custody.
Provided
that no Magistrate shall remain an accused person to custody under this Section
for a term exceeding fifteen days at a time;" xxx xxx xxx xxx xxx xxx xxx xxx
There cannot be any manner of doubt that the remand and the custody referred to
in the first proviso to the above sub-section are different from detention in
custody under Section 167. While remand under the former relates to a stage
after cognizance and can only be to judicial custody, detention under the
latter relates to the stage of investigation and can initially be either in
police custody or judicial custody. Since, however, even after cognizance is
taken of an offence the police has a power to investigate into it further,
which can be exercised only in accordance with Chapter XII, we see no reason
whatsoever why the provisions of Section 167 thereof would not apply to a
person who come to be later arrested by the police in course of such
investigation. If section 309(2) is to be interpreted - as has been interpreted
by the Bombay High Court in Mansuri (supra) - to mean that after the Court
takes cognizance of an offence it cannot exercises its power of detention in
police custody under Section 167 of the Code, the Investigating Agency would be
deprived of an opportunity to interrogate a person arrested during further
investigation, even if it can on production of sufficient materials, convince
the Court that his detention in its (police) custody was essential for that
purpose. We are therefore of the opinion that the words "accused if in
custody" appearing in Section 309(2) refer and relate to an accused who
was before the Court when cognizance was taken or when enquiry or trial was
being held in respect of him and not to an accused who is subsequently arrested
in course of further category is concerned he can be remanded to judicial
custody only in view of Section 309(2), but he who come under the second
category will be governed by Section 167 so long as further investigation
continues. That necessarily means that in respect of the latter the Court which
has taken cognizance of the offence may exercise its power to detain him in
police custody, subject to the fulfillment of the requirements and the
limitation of Section 167.
The
moot question that now requires to be answered is whether a Court can issue a
warrant to apprehend a person during investigation for his production before
police in aid of the Investigating Agency. While Mr. Ashok Desai, the learned
Attorney General who appeared on behalf of CBI, submitted that Section 73
coupled with Section 167 of the Code bestowed upon the Court such power, Mr. Kapil
Sibal, who appeared as amicus curie (the respondents did not appear inspite of
publication of notice in newspaper) submitted that Court has no such power. To
appreciate the steps of reasoning of the learned counsel for their respective
stands it will be necessary to refer to the relevant provision of the Code and
TADA relating to issuance of processes.
Chapter
VI of the Code which is captioned as `processes to compel appearance' consists
of four parts part A relates to Summons; part B to warrant of arrest; part C to
proclamation and attachment and part D to other rules regarding processes. Part
B, with which we are primarily concerned in these appeals, has in its fold
Section 70 to
81.
Section 70 speaks of the form in which the warrant to arrest a person is to be
issued by the Court and of its durational validity. Section 71 empowers the
Court issuing the warrant to direct the officer who is to execute the warrant,
to release that person on terms and condition as provided therein. Section 72
provides that a warrant shall ordinarily be directed to one or more police
officers but if its immediate execution in necessary and no police officer is
immediate available it may be directed to any other person for execution.
Section 73 which is required to be interpreted in these appeals, read as under:
"73(1)
The Chief Judicial Magistrate of a Magistrate of the first class may direct a
warrant to an person within his local jurisdiction for the arrest of any
escaped convict, proclaimed offender or of any person who is accused of a non-bailable
offence and is evading arrest.
(2)
Such person shall acknowledge in writing the receipt of the warrant, and shall
execute it if the person for whose arrest it was issued, is in, or enter on,
any land or other property under his charge." Section 76 requires the
police officer or other person, who executes the warrant to bring the person
arrested before the Courts (unless he is released in terms of Section 71),
within twenty four hours.
Section
82, appearing in part C empowers the Court to issue proclamation; and so far as
it is relevant for our present purpose, read as under:
"82(1)
If any Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be executed, such Court may
publish a written proclamation requiring him to appear at a specified place and
at a specified time not less than thirty days from the date of publishing such
proclamation.
(emphasis
supplied) xxx xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx After issuing a proclamation
in terms of the above provision, the Court may also order attachment of the
property of the proclaimed person under Section 83; and even deprive him of his
such property if he does not appear within the time prescribed under Section
85.
Chapter
XVI relates to commencement of proceedings before Magistrates and Section 204
appearing therein enable a Magistrate, who takes cognizance of an offence, to
issue process (summons/warrant) against the accused if he finds sufficient
grounds to proceed against him.
Coming
now to the relevant provisions of TADA was may first refer to sub-section (3)
of Section 8 relating to proclamation for and attachment of the property of a
person accused of an offence punishable under TADA. Clause (a) of the above
sub-section lays down that if upon a report in writing made by a police officer
or an officer referred to in sub-section (1) of Section 7, any Designated Court
has reason to believe that any person, who has committed an offence punishable
under the Act or any rule made thereunder, has absconded or is concealing
himself so that he may not be apprehended, such Court may, notwithstanding
anything contained in Section 82 of the Code, publish a written proclamation
requiring him to appear at a specified place and at a specified time not less
than fifteen days but not more than thirty days for the date of publication of
such proclamation; and sub-section (3)(b) thereof entitles the Court issuing
the proclamation to order attachment of property belonging to the proclaimed offender
and then proceed in accordance with Section 83 to 85 of the Code. For all
intents and purpose, therefore, sub-section 8(3) of TADA seeks to achieve the
same object as part C of Chapter VI does, namely to compel appearance of the
accused. The other section to which reference need be made is Section 20 which
makes the provisions of the Code applicable to the proceeding under TADA,
subject to the modification envisaged therein.
The
contention of Mr. Desai was that though in exercise of its power under Section
41 of the Code a police officer may without an order from a Magistrate and
without a warrant arrest a person who is concerned in any cognizable offence of
against whom a reasonable complaint has been made, or a credible information
has been received or a reasonable suspicion exists, of his having been so
concerned, under the Code the police has no power of its own to compel his
appearance if he evades the arrest. It is in that context, Mr. Desai argued,
that the Court has been given the power under Section 73 to issue warrant of
arrest for apprehension of such a person; and, thereafter, if need be, to issue
proclamation and pass order for attachment of his properties. In joining
issues, Mr. Sibal urged that the scheme of the Code is that the police has complete
control of the investigation and is not aided by any judicial authority. Once
the investigation culminates in the police report under Section 173(2) that the
Court steps in by taking cognizance thereupon and issuing summons or warrant
under Section 204 against the person arraigned. According to Mr. Sibal, in the
scheme of the Code it is unthinkable that the police, while investigating under
Chapter XII is entitled to seek the help of a Magistrate for the purpose of
issuance of a warrant of arrest in aid of investigation. As regards Section 73,
Mr. Sibal's argument was that in the scheme of part B of Chapter VI that
section only lays down a procedure to enable a Court to execute a warrant
already issued under Section 204 but does not confer any right to issue a
warrant, much less during investigation.
At
this stage it is pertinent to mention that under the old Code the corresponding
provision was Section 78; and while recommending its amendment the Law
Commission in its 41st report stated, inter alia:
"6.8
Section 78 at present confers a power on the District Magistrate or
Sub-Divisional Magistrate to issue a special type of "warrant to a
land-holder, farmer or manager of land within the district of sub- division for
the arrest of an escaped convict, proclaimed offender or person who has been
accused of a non-bailable offence and who has eluded pursuit".
Although
the power is infrequently exercised, there appear to be no objection to
conferring it on all Magistrates of the first class and all .............
...................................
....................."
(emphasis supplied) Apart from the above observations of the Law Commission,
from a bare perusal of the Section (quoted earlier) it is manifest that it
confers a power upon the class of Magistrates mentioned therein to issue
warrant for arrest of three classes of person, namely, i) escaped convict, ii)
a proclaimed offender and iii) a person who is accused of a non-bailable
offence and is evading arrest. If the contention of Mr. Sibal that Section 204
of the Code is the sole repository of the Magistrate's power to issue warrant
and the various Sections of part `B' of Chapter VI including Section 73 only
lay down the mode and manner of execution of such warrant a Magistrate referred
to under Section 73 could not - and would not - have been empowered to issue
warrant of arrest for apprehension of an escaped convict, for such a person can
not come within the purview of Section 204 as it relates to the initiation of
the proceeding and not to a stage after a person has been convicted on
conclusion thereof.
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 non cognizable 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 into a non- cognizable and non-bailable offence, (like Sections
466 or 467 (Part I) 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 presence would be to ask the Magistrate to invoke his
powers under Section 73 and thereafter those relating to proclamation and
attachment. In such an eventuality, the Magistrate can legitimately exercise
his power under Section 73, for the person to be apprehended is `accused of a
non-bailable offence and is evading arrest.' Another factor which clearly
indicates that Section 73 of the Code gives a power to the Magistrate to issue
warrant of arrest and that too during investigation is evident from the
provisions of part `C' of Chapter VI of the Code, which we have earlier
adverted to. 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 inspite of its best effects 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] Lastly, we may refer to Section 90, which appears in part `D' of Chapter
VI of the Code and expressly states that the provisions contained in the
Chapter relating to a summon and warrant, and their issue, service and
execution shall, so far as may be, apply to every summon and every warrants of
arrest issued under the Code. Therefore, when a Court issues a warrant of
arrest, say under Section 155 of the Code, any steps that it may have to
subsequently take relating to that warrant of arrest can only be under Chapter
VI.
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 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 Court solely for the production of the accused before the police in aid
of investigation.
On the
conclusions as above we allow these appeals, set aside the impugned order and
direct the Designated
Court to dispose of
the three miscellanous applications filed by C.B.I in accordance with law and in
the light of the observations made herein before.
Before
parting with this judgment was place on record our deep appreciation for the
valuable assistance rendered by Mr. Desai and Mr. Sibal in deciding the issue
involved in these appeals.
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