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.
13. 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.
24. 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 nonbailable 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 nonbailable
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.”
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) No. 535 of 2016
JAYSUKH @ JAYESH MULJIBHAI RANPARIYA ( PATEL )
V
STATE OF GUJARAT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 20/10/2016
1. Rule. Mr. Mitesh Amin, learned Public
Prosecutor with Mr. Manan Mehta, learned APP
waives service of notice of Rule for
Respondent No.1 – State of Gujarat.
2. Heard learned Senior Advocate Mr.Nirupam
Nanavati with Mr. Viral K. Shah, learned
advocate for the Petitioner as well as
Mr.Mitesh Amin, learned Public Prosecutor
with Mr. Manan Mehta, learned APP for the
Respondent – State. Perused the record.
3. The Petitioner herein is accused with
reference to Jamnagar City `A’ Division
Police Station vide ICR No.105 of 2016
registered under Sections 384, 467, 468, 504,
506(2), 34 and 120(B) of IPC. The allegation
in the FIR is to the effect that the property
worth more than Rs.100 crores has been sold
of by bogus power of attorney deed.
Therefore, complaint is filed against as many
as 13 accused amongst which present
Petitioner is accused No.1.
4. However, at present, the impugned order is
dated 2.7.2016 below the letters dated
22.7.2016 and 13.6.2016 by the PI of LCB
police station, Jamnagar which are treated as
applications by the Chief Judicial
Magistrate, Jamnagar. By such letter
applications, Investigating Officer has
requested to issue warrant in English
language so as to enable them to execute such
warrant upon present Petitioner alleging that
he is avoiding his arrest and selected his
hideouts in other State submitting that in
other State, a warrant of Court in English is
necessary for arresting any such accused.
Such warrant is prayed for with reference to
Section 70 of the Code of Criminal Procedure,
1973.
5. If we peruse the application, it becomes
clear that the only allegation in the
application is to the effect that when
Investigating Officer tried to arrest the
accused, he could not be found at his last
known address and though his application for
anticipatory bail is cancelled, he is not
available for investigation or arrest and,
thereby, he is absconding and avoiding arrest
and probably he has hidden in some other
State and, thereby, there is no possibility
to arrest him in near further and, therefore,
when police of other State is demanding the
warrant by the Court in English so as to
arrest such person who are hiding in such
other State, there is need of warrant under
Section 70 of the Code of Criminal Procedure,
1973 in English. It is also contended that
Petitioner was not available at his residence
on different dates which is listed in such
application viz; 27, 28, 29 May, 2016 and 10,
12, 28, 29 of June, 2016. When application is
seeking warrant under Section 70 of the Code
of Criminal Procedure, 1973, (For short
`Code’) initially provision of Section 70
needs to be referred here, which reads as
under:
Form of warrant of arrest and duration:
1. Every warrant of arrest issued by
a 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.
6. The bare reading of above provision makes it
clear that it is providing the manner in
which warrant is to be issued i.e. it shall
be in writing and signed by the Officer of
the Court and shall bear the seal of the
Court and that it shall remain in force until
it is cancelled by the Court or until it is
executed. Therefore, practically, it seems
that, though the Investigating Officer wants
a warrant as provided under Section 70 of the
Code of Criminal Procedure, 1973, enabling
provisions to issue such warrant is under
Section 73 of the Code of Criminal Procedure,
1973, which reads as under:
“Section 73. Warrant may be
directed 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 of 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.”
7. It is undisputed fact that though there is
reference in sub Section (1) of Section 73 of
the Code of Criminal Procedure, 1973 to issue
warrant against “any person,” it is also
certain that such “any person” is thereafter
explained in the same Section, whereby, it is
stated that arrest of “any escape convict” or
“proclaimed offender” or “any person who is
accused of a nonbailable offence and is
evading arrest.”
8. Whereas, in sub Section (3) of Section
Section 73 of the Code of Criminal Procedure,
1973, it is made clear that when the person
against whom such warrant is issued, is
arrested, he should be taken before a
Magistrate having jurisdiction, unless
security is taken under Section 71.
9. Section 71 of the Code of Criminal Procedure,
1973 empowers the Court to direct security to
be taken. Thereby, any Court issuing a
warrant for the arrest of any person may in
its discretion direct by intimation if such
person executes a bond, with sufficient
sureties for his attendance before the Court
at a specified time and, thereafter, only
otherwise directed by the Court, the Officer
to whom the warrant is directed shall take
such security and shall release such person
from custody.
10. Section 76 of the Code of Criminal Procedure,
1973 provides that person arrested is to be
brought before Court without delay confirming
that the Police Officer or other person
executing a warrant of arrest shall, subject
to the provisions of Section 71 as to
security without unnecessary delay bring the
person arrested before the Court before which
he is required by law to produce such person,
with a proviso that such delay shall not, in
any case, exceed twentyfour hours exclusive
of the time necessary for the journey from
the place of arrest to the Magistrate’s
Court.
11. Though there is provision of Section 80 in
the Code regarding procedure on arrest of
person against whom warrant is issued making
it clear that unless the Court which issued
the warrant is within 30 kilometers of the
place of arrest or is nearer than the
Executive Magistrate or District
Superintendent of Police or Commissioner of
Police within the local limits of whose
jurisdiction, the arrest was made or unless
security is taken under Section 71, he should
be taken before such Magistrate or District
Superintendent of Police or Commissioner; it
seems that the proviso of Section 71
regarding twentyfour hours is being misused
by the Investigating Agency and, therefore,
such situation is arising in so many cases
when police asked for warrant prior to filing
of chargesheet.
12. The core issue in the present petition is
practically to the effect that whether Court
is empowered to issue warrant pending
investigation and direct the accused to be
arrested for the purpose of investigation
though chargesheet is not yet filed before
the Court and, thereby, Court has not taken
cognizance. Thus, Court can issue warrant
only after taking cognizance and to proceed
further in accordance with law.
13. It seems that probably, there is practice to
issue such warrant by so many Courts and,
therefore, it is submitted that the police of
other States are seeking such warrant to be
issued by an order of the Court. However, the
fact remains that irrespective of practices
being followed on different places by
different Courts and different authorities,
whenever, issue is raised before the Judicial
Authority, Judicial Authority has to rely
solely upon the provisions of law and settled
legal position that may be emerging from the
decision of Hon’ble Supreme Court of India on
the subject. Thereby, irrespective of any
inconvenience or necessity of Investigating
Agency or anyone else, even if, benefit is
to be extended to the accused, then, there is
no option but to extend such benefit to the
accused irrespective of nature and gravity of
crime or nature of the offender.
14. One such glaring example is the case of
Dawood Ibrahim Kaskar whose identity does not
need any details, but the full bench of the
Hon’ble Supreme Court of India has, in
similar situation decided the issue in his
favour by cancelling the warrant. The case
under reference is of State through CBI v.
Dawood Ibrahim Kaskar reported in 2000 (10)
SCC 438 details of which would be taken care
hereinafter in sequence of facts and case
law.
15. The other core issue is the concept of
“Custody” of such accused when he has
preferred several litigations before the
competent authority either for quashing the
complaint against him or for anticipatory
bail or by challenging any such order of
issuance of warrant as challenged in the
present petition. It is settled legal
position that once a person surrenders to the
jurisdiction of the Court of law, he is to be
treated either in custody or
care/protection/shelter of the Courts where
he is praying some equitable reliefs based
upon the constitutional rights. The
reference to the case of Sundeep Kumar Bafna
v. State of Maharashtra reported in 2014(16)
SCC 623 would be material, wherein, meaning
of custody is elaborated confirming the view
taken in this judgment.
16. In the present case, though during the
argument, it is emphasized that trial Court
has no jurisdiction to allow such an
application to issue a warrant to arrest and
produce the Petitioner before the Police
Officer pending investigation, the sum and
substance of the Revision Petition is to the
effect that when Petitioner was very well
before the Judicial Authority, right from
27.5.2016 i.e. 2nd day of the FIR i.e.
25.5.2016 till filing of such application, it
cannot be said that Petitioner is absconder
and, therefore, there is no reason to issue
warrant against him. It is further submitted
that during such period of almost more than
one month, Petitioner has exhausted his legal
rights to quash the complaint or to get
anticipatory bail but since he could not
succeed in any such prayer, it cannot be said
that he is absconding and, therefore, warrant
is required to be issued as per impugned
order. If we peruse the impugned order, it
becomes clear that learned Chief Judicial
Magistrate, Jamnagar has purely relied upon
the statement of the later application and
one judgment cited before it in the case of
Nazzimudin Fakrudin Kazi v. State of Gujarat
reported in 2016(1) GLR 208.
17. As against that Petitioner is relying upon
the case of Narayan @ Narayan Sai @ Mota
Bhagwan S/o. Ashram Bapu v. State of Gujarat
repoted in 2013(0) AIJEL – HC 231437.
Therefore, this Court has no option but to
discuss the rival submission before deciding
the case finally by referring all relevant
judgments on the subject.
18. Otherwise also the factual details are not
much material at this stage because it is
undisputed fact that there is FIR against the
Petitioner and that he could not succeed in
quashing such FIR or getting anticipatory
bail and, therefore, sooner or later he would
be arrested by the police. Thereby, he has no
option but to surrender to the Judicial
Authority for facing the trial and before
that, he needs to cooperate with the
investigating agency so as to enable the
Investigating Officer to complete the
investigation. At this stage, it is also
clear that if Petitioner has not committed
any offence then he has no reason to be
afraid of appearing before the Investigating
Officer and to submit his case with an
attempt to convince the Investigating Agency
that either he has not committed offence or
there is no evidence against him to prove
that he has committed any offence. But hiding
from investigation would certainly result
into issuance of such warrant, may be because
of the aforesaid, such practice is being
followed and also on account of different
decisions on such issue by different Courts.
19. In any case, the law is well settled that the
Court cannot issue warrant in aid of
investigation prior to filing of chargesheet
and it is also well settled position that
once litigant is before the Court by filing
of any proceeding, then, he is to be treated
in judicial custody and in that case, it
would be appropriate for the concerned Court
to pass appropriate direction to such
Petitioner to appear before the competent
authority in aid of investigation and to
ensure that investigation is completed.
During such exercise, the only concern of
accused may be regarding the powers of the
Investigating Agency to keep him in police
custody atleast for twenty four hours.
Therefore, if that part is taken care of, the
entire issue would be resolved with respect
to all cases without multiplicity of
proceedings in nature of present litigation.
20. For the purpose, following citations needs to
be referred here:
[1] Inder Mohan Goswami v. State of
Uttaranchal reported in 2007 (12) SCC 1,
wherein, the full bench of Hon’ble Supreme
Court of India has categorically held that;
“47. Before parting with this
appeal, we would like to discuss an
issue which is of great public
importance, i.e., how and when
warrants should be issued by the
Court? It has come to our notice
that in many cases that bailable
and nonbailable warrants are
issued casually and mechanically.
In the instant case, the court
without properly comprehending the
nature of controversy involved and
without exhausting the available
remedies issued nonbailable
warrants. The trial court
disregarded the settled legal
position clearly enumerated in the
following two cases.
48. In Omwati v.State of UP &
Another (2004) 4 SCC 425, this
court dealt with a rather unusual
matter wherein the High Court
firstly issued bailable warrants
against the appellant and
thereafter by issuing nonbailable
warrants put the complainant of the
case behind bars without going
through the facts of the case. This
Court observed that the unfortunate
sequel of such unmindful orders has
been that the appellant was taken
into custody and had to remain in
jail for a few days, but without
any justification whatsoever. She
suffered because facts of the case
were not considered in proper
perspective before passing the
orders. The court also observed
that some degree of care is
supposed to be taken before issuing
warrants.
49. In State of U.P. v. Poosu &
Another (1976) 3 SCC 1 at para 13
page 5, the Court observed:
“13.......Whether in the
circumstances of the case, the
attendance of the accused
Respondent can be best secured by
issuing a bailable warrant or nonbailable
warrant, is a matter which
rests entirely in the discretion of
the court. Although, the discretion
is exercised judiciously, it is not
possible to computerize and reduce
into immutable formulae the diverse
considerations on the basis of
which this discretion is exercised.
Broadly speaking, the court would
take into account the various
factors such as the nature and
seriousness of the offence, the
character of the evidence,
circumstances peculiar to the
accused, possibility of his
absconding, larger interest of the
public and the State”.
Personal liberty and the interest
of the State
50. Civilized countries have
recognized that liberty is the most
precious of all the human rights.
The American Declaration of
Independence 1776, French
Declaration of the Rights of Men
and the Citizen 1789, Universal
Declaration of Human Rights and the
International Covenant of Civil and
Political Rights 1966 all speak
with one voice liberty is the
natural and inalienable right of
every human being. Similarly,
Article 21 of our Constitution
proclaims that no one shall be
deprived of his liberty except in
accordance with the procedure
prescribed by law.
51. The issuance of nonbailable
warrants involves interference with
personal liberty. Arrest and
imprisonment means deprivation of
the most precious right of an
individual. Therefore, the courts
have to be extremely careful before
issuing nonbailable warrants.
52. Just as liberty is precious
for an individual so is the
interest of the society in
maintaining law and order. Both are
extremely important for the
survival of a civilized society.
Sometimes in the larger interest of
the Public and the State it becomes
absolutely imperative to curtail
freedom of an individual for a
certain period, only then the nonbailable
warrants should be issued.
When nonbailable warrants should
be issued
53. Nonbailable warrant should be
issued to bring a person to court
when summons of bailable warrants
would be unlikely to have the
desired result. This could be when:
* it is reasonable to believe that
the person will not voluntarily
appear in court; or
* the police authorities are
unable to find the person to serve
him with a summon; or
* it is considered that the person
could harm someone if not placed
into custody immediately.
54. As far as possible, if the
court is of the opinion that a
summon will suffice in getting the
appearance of the accused in the
court, the summon or the bailable
warrants should be preferred. The
warrants either bailable or nonbailable
should never be issued
without proper scrutiny of facts
and complete application of mind,
due to the extremely serious
consequences and ramifications
which ensue on issuance of
warrants. The court must very
carefully examine whether the
Criminal Complaint or FIR has not
been filed with an oblique motive.
55. In complaint cases, at the
first instance, the court should
direct serving of the summons along
with the copy of the complaint. If
the accused seem to be avoiding the
summons, the court, in the second
instance should issue bailablewarrant.
In the third instance,
when the court is fully satisfied
that the accused is avoiding the
courts proceeding intentionally,
the process of issuance of the nonPage
bailable warrant should be resorted
to. Personal liberty is paramount,
therefore, we caution courts at the
first and second instance to
refrain from issuing nonbailable
warrants.
56. The power being discretionary
must be exercised judiciously with
extreme care and caution. The court
should properly balance both
personal liberty and societal
interest before issuing warrants.
There cannot be any straightjacket
formula for issuance of warrants
but as a general rule, unless an
accused is charged with the
commission of an offence of a
heinous crime and it is feared that
he is likely to tamper or destroy
the evidence or is likely to evade
the process of law, issuance of
nonbailable warrants should be
avoided.
57. The Court should try to
maintain proper balance between
individual liberty and the interest
of the public and the State while
issuing nonbailable warrant.
58. On consideration of the
totality of facts and circumstances
of this case, the impugned judgment
and order of the High Court cannot
be sustained.”
[2] State through CBI v. Dawood Ibrahim
Kaskar reported in 2000 (10) SCC 438,
wherein, the full bench of Hon’ble Supreme
Court of India has categorically held that;
“6. 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.
12. 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.
13. 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.
24. 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 nonbailable 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 nonbailable
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.”
[3] Vikas v. State of Rajasthan reported in
AIR 2014 SC (Supp) 1124, wherein, the full
bench of Hon’ble Supreme Court of India has
categorically held that;
“14. The Constitution of India
is the grundnorm the paramount law
of the country. All other laws
derive their origin and are
supplementary and incidental to the
principles laid down in the
Constitution. Therefore, Criminal
Law also derives its source and
sustenance from the Constitution.
The Constitution, on one hand,
guarantees the Right to Life and
Liberty to its citizens under
Article 21 and on the other hand
imposes a duty and an obligation on
the Judges while discharging their
judicial function to protect and
promote the liberty of the
citizens.”
21. Though law is well settled by above referred
decisions of the Hon’ble Supreme Court of
India, it seems that when learned Single
Judge in case of Nazzimudin Fakrudin Kazi
(Supra) held that warrant under Section 70
can be issued at the stage of investigation
if a person accused of non bailable offence
is evading arrest. However, it is also
clarified in the judgment that the person was
arrested in execution of warrant and was
required to be brought before the Magistrate
who may then follow appropriate course
available under Section 167 or Section 439 of
the Code and, thereby, confirmed the order by
Chief Judicial Magistrate issuing warrant
against the Petitioner in that case.
22. The learned Single Judge has pointed out the
difference of opinion in such reported case
and in the case of Narayan @ Narayan Sai @
Mota Bhagwan (Supra), wherein, another
learned Single Judge of this High Court has
taken a contrary view prior to such reported
judgment relying upon the case of State
through CBI v. Dawood Ibrahim Kaskar (Supra)
and thereby confirming that warrant cannot be
issued in aid of investigation, as prayed
for. It is submitted that though this
judgment has been cited before the learned
Single Judge in the case of Nazzimudin
Fakrudin Kazi v. State of Gujarat (Supra)
without disclosing that how it has been
distinguished or how it is not applicable
when learned Single Judge is taking a
different view, practically, learned Single
Judge has to refer the matter to the larger
bench. At present, I do not wish to enter
into such controversy regarding reference of
such case to the larger bench but it is clear
that thereby learned counsel is suggesting
that if at all this Court is of the view to
rely upon the judgment in the case of
Nazzimudin Fakrudin Kazi (Supra) then the
Court should refer the matter to the larger
bench for appropriate directions in view of
conflicting decisions. However, when I am
relying upon the judgments of Hon’ble Supreme
Court of India referred hereinabove, I do not
see any reason to rely upon the judgment of
Nazzimudin Fakrudin Kazi (Supra), more
particularly, when in my opinion, in such
cases, in addition to quashing the order of
issuance of warrant, what is required is
direction to the Petitioner who is consider
in judicial custody, to appear before the
Investigating Agency safeguarding his
apprehension of being arrested and keep in
police custody for twenty four hours
considering it as their absolute right and
thereby taken it as granted by Investigating
Agency that they are entitled to detain a
person for twenty four hours irrespective of
nature of crime and person concerned.
23. It is also evident from above discussion and
provision of law that in any case, in
compoundable offences, non bailable warrant
cannot be issued but initially even
Investigating Officer has to issue a notice
to the accused to remain present before him
as provided under Section 160 of the Code
which empowers the police officers to require
attendance of any person before him though
the word used in the Section is witness. In
general, there is necessity to initially
issue such notice and on noncompliance of
such notice, bailable warrant and then only
nonbailable warrant or otherwise police has
got inherent power to inquiry from anybody,
if there is sufficient evidence with him
regarding commission of particular offence by
any such person, for which order of warrant
by judicial authority is not required at all.
24. However, as aforesaid, such issue can be
resolved by quashing the order of issuance of
warrant in aid of investigation but with
direction to the Petitioner to remain present
before the Investigating Officer to see that
investigation is completed and in that case
Investigating Officer may arrest the
Petitioner and may be produced before the
Magistrate immediately at the earliest
without waiting for twenty four hours
considering the fact that period of twenty
four hours is not mandatory and must as
provided under Section 76 of the Code, which
provides that such person shall be produced
before the competent Court without
unnecessary delay. Thereby, what is
emphasized in Section 76 is production
without unnecessary delay but with a rider
that such delay should never be beyond twenty
four hours. Therefore, it cannot be said that
police is permitted to keep the accused in
its custody for twenty four hours
irrespective of all other issues like
nature and gravity of offence, so also nature
of accused. Thereby, though there is no
classification amongst criminals, it is quite
clear that if some hardcore criminal is
arrested and if investigation is ongoing to
get certain information or evidence, then,
there may be delay in production of person
before the Court but in cases where offence
is on paper, probably, there is no need to
keep the accused in police custody beyond
office hours or atleast overnight. At the
most, if Investigating Agency is of the
opinion that continuous police interrogation
is required to avail certain information and
evidence then, in that case, police can
certainly apply for remand.
25. A reference to the case of Kamal Kishin
Lougani v. Senior Intelligence Officer in
Criminal Misc. Case No.2023 of 2016 by
Division Bench of Kerala High Court would be
relevant, wherein, in similar situation, the
Court has issued several directions and
practically based upon such directions, the
Investigating Agency has considered that no
further order is required. A reference to the
order dated 16th September, 2016 in the case
of Pravin Kanabhai Kandoriya v. State of
Gujarat by Hon’ble Supreme Court of India in
Special Leave to Appeal (Criminal) No.6885 of
2016 is also material, wherein, by such order
dated 16th September, 2016, Hon’ble Supreme
Court of India has also though rejected the
application for anticipatory bail and though
quashing petition was also rejected, extended
a benefit against arrest for four weeks with
a direction to the accused to appear before
the Court and to file Regular bail
application. It is also relevant to recollect
the order dated 22.7.2016 in Special Leave
to Appeal (Criminal) No.5350 of 2016 by
Hon’ble Supreme Court of India in the case of
Kamlesh Lakhubhai Falia v. State of Gujarat,
wherein also, though benefit of anticipatory
bail has been refused by the Hon’ble Supreme
Court of India, the Hon’ble Supreme Court of
India has directed the Petitioner to
surrender before the trial Court and to make
an application for bail with a direction to
decide the same at the earliest in accordance
with law.
26. In view of above facts and circumstances,
when there is material irregularity and
illegality in the impugned judgment, by
issuance of warrant, without serving notice
or bailable warrant and that too in aid of
investigation without direction to produce
the accused before the appropriate Court,
impugned order dated 2.7.2016 by the Chief
Judicial Magistrate, Jamnagar is hereby
quashed and set aside but with following
directions;
(A) The Petitioner shall appear
before the Investigating Officer
within a period of four weeks from
today with prior intimation to the
Investigating Officer. Such
appearance shall be between 10.00
am to 6.00 pm during which
Investigating Officer shall
complete the investigation of the
case.
(B) If at all, Investigating
Officer requires the presence of
Petitioner again on any other day,
then, Petitioner shall continue to
appear before the Investigating
Officer as and when called upon by
the Investigating Officer but only
between 10.00 am and 6.00 pm.
(C) Petitioner can apply for bail
before the competent Court and
Investigating Officer can apply for
police custody if he so desire.
27. This application stands disposed of with the
above observations and directions. Rule is
made absolute to the aforesaid extent. Direct
Service is permitted.
Sd/-
(S.G.SHAH, J.)
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