1. Heard learned counsel for the petitioners and learned counsel for the State.
2. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioners for quashing the orders dated 27.03.2019
and 15.07.2019 passed by the learned Chief Judicial Magistrate, Saran whereby on requisitions dated 15.03.2019 and 28.06.2019 presented by the
Sub-Inspector of Police, Madhaura Police Station, Saran, warrant of arrest and proclamation order respectively have been issued against the
petitioners in connection with Madhaura P.S. Case No.570 of 2018 registered under Section 302 read with 34 of the Indian Penal Code (for short
‘IPC’).
3. Learned counsel appearing for the petitioners submitted that the orders impugned whereby warrant of arrest and proclamation order have been
issued are wholly illegal, unjust and unsustainable in the eye of law. He has contended that though none of the preconditions for exercising powers
under Section 73 of the Code of Criminal Procedure (for short ‘CrPC’) were fulfilled, the learned Chief Judicial Magistrate has mechanically
issued warrant of arrest vide order dated 15.07.2019. Also, by a non-speaking order a written proclamation requiring the petitioners to appear under
Section 82 of the CrPC was issued by the learned Chief Judicial Magistrate. According to him, there was ‘no reason to believe’ that the
petitioners had absconded or concealed themselves. In absence of the satisfaction by the Magistrate that the petitioners had absconded or concealed
themselves, he could not have granted permission for proclamation against them.
4. Per contra, learned counsel appearing for the State submitted that since the petitioners were evading arrest, there is no illegality in the order passed
by the learned Chief Judicial Magistrate whereby he has issued warrant of arrest against them. He has further submitted that since the petitioners
failed to appearing before the police or the court in spite of issuance of non-bailable against them, the court rightly allowed the prayer of the police for
issuance of an order of proclamation against them.
5. Having heard learned counsel for the parties and perused the materials available on record, in order to examine the issues raised by the petitioner, it
would be relevant to consider the ambit and scope of Section 73 of the CrPC, which is set out hereinbelow:-
“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 offencer 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
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.â€
(emphasis added)
6. Section 73 of the CrPC is of general application and, in course of investigation, a court can issue a warrant of arrest in exercise of powers
conferred thereunder.
The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant of any person within his local jurisdiction under Section 73 of the
CrPC.
7. Section 73(1) of the CrPC says that 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 non-bailable offence and is evading
arrest.
8. It has been pleaded that the petitioners are neither escaped convict nor proclaimed offender.
9. The requisition filed by the Sub-Inspector of Police of Madhaura Police Station on 15.03.2019 pursuant to which the warrant of arrest was issued
by the court has been brought on record as Annexure-3 to the present application.
10. The requisition filed by the police, as contained in Annexure-3 to the application is set out hereinbelow:-
“ ,
: 0-570/18 0-30/11/18 - 302/34 0 0 0
:
,
0 0 (1)
(2) (3) , 0 - , - , -
,
0 0
15/03/19
S.I.
P.S. Madhaura Saranâ€
11. It would be evident from a reading of the requisition dated 15.03.2019 submitted by the investigating officer that no where the investigating officer
disclosed, whether the police were unable to apprehend the petitioners, or as to why they were unable to apprehend the petitioners on their own and
why non-bailable warrants were required from the court. It was merely stated that on the basis of investigation, the case has been found true against
the petitioners, hence, the non-bailable warrant of arrest is required for their arrest. The requisition filed by the investigating officer no where stated
that the accused persons were evading arrest.
12. It is not the case of the respondents that the petitioners were escaped convict or were proclaimed offender on 15.03.2019.
13. As per the provision stipulated under Section 73 of the CrPC, a warrant can be issued against any person, who is either an escaped convict, or a
proclaimed offender, or who is an accused of a non-bailable offence and is evading arrest.
14. The word ‘and’ has been used between two phrases, namely, ‘any person who is an accused of a non-bailable offence’- ‘is
evading arrest’. The word ‘and’ has been used as conjunctive. Hence, both these situations must appear simultaneously. A person against
whom warrant is to be issued must be accused of a non-bailable offence and also he must be evading arrest. If both the essential preconditions are not
available, then a warrant of arrest can not be issued.
15. In absence of any material on record to show that the petitioners were evading arrest, issuance of non-bailable warrant against them without any
reason can not be justified.
16. It is a settled position in law that the warrant of arrest against a person accused of a non-bailable offence can not be granted on mere asking by
the police. The requisition to be made by the police in this regard is not an empty formality. It has been settled through catena of decisions that the
requisition filed by the police must disclose that there is evidence to substantiate the allegation that the petitioner is an accused of a non-bailable
offence and is evading arrest also at the same time. The court too has to record its satisfaction that there is sufficient allegation against the petitioner
of being an accused of a non-bailable offence and is evading arrest also at the same time.
17. In State Through C.B.I. v. Dawood Ibrahim Kaskar and Others since reported in AIR 1997 SC 249, 4the Supreme Court has ruled that under
Section 73 of the CrPC a warrant of arrest can not be issued by the courts solely for the production of the accused before the police in aid of
investigation.
18. It would be evident from the requisition dated 15.03.2019 filed by the investigating officer pursuant to which warrant of arrest was issued against
the petitioners that the same was incomplete and lacking in material particulars.
19. From a perusal of the order dated 27.03.2019 also, it would be apparent that the learned Magistrate did not apply his judicial mind to the facts of
the case or looked into the application or considered the requirements of law for the purposes of issuance of warrant of arrest. The order impugned
dated 27.03.2019 simply says that the investigating officer submitted an application for issuance of warrants, seen the same, warrants be issued
against the accused persons. Apparently, the order dated 27.03.2019 was passed by the learned Chief Judicial Magistrate, Saran in a casual and
cavalier manner.
20. As far as the legality of the issuance of the order of a written proclamation requiring the petitioners to appear before the court is concerned, first
of all I think it apt to set out the requisition filed by the police on 28.06.2019 before the court of the Chief Judicial Magistrate, Saran hereinunder:-
“ ,
: 0-570/18 0-30/11/18 - 302/34 0 0 0
:
,
0 0 (1)
(2) (3) , 0 - , - , -
-DR No. 322/19 06.06.19
0
0 0
28/06/19
( )
S.I.
P.S. Madhaura
Saranâ€
21. The CrPC has provided ample powers to execute a warrant. If it remains unexecuted, the court has been vested with the power to issue
proclamation order and order of attachment under Sections 82 and 83 of the CrPC respectively. The sine quo none for an action under Section 82 of
the CrPC is the prior issuance of warrant of arrest by the Magistrate. There must be a report before the Magistrate that the person against whom the
warrant was issued by him have absconded or is concealing himself so that such warrant can not be executed. An order of proclamation can not be
issued by the Magistrate in a casual and mechanical manner. Before issuance of such proclamation order, the Magistrate is required to apply his
judicial mind and must arrive at a decision disclosing his ‘reason to believe’. Mere return of warrant of arrest without execution would not
justify the Magistrate to issue an order for proclamation.
22. The expression ‘reason to believe’ in Section 82 of the CrPC has been used with a purpose. Before issuance of such proclamation order,
the Magistrate must be subjectively satisfied that the person has absconded or has concealed himself in order to avoid execution of warrant of arrest.
23. The order impugned dated 28.06.2019 passed by the learned Chief Judicial Magistrate neither shows his satisfaction nor indicates that he had any
‘reason to believe’ for passing such order.
24. The requisition dated 28.06.2019 submitted by the investigating officer of the case merely states that the warrant of arrest issued earlier has been
returned to the court on 06.06.2019 for further action, but the proclamation order has not been issued till date. Hence, it is requested that a
proclamation order be issued against the FIR named accused persons.
25. After the said requisition dated 28.06.2019 submitted by the investigating officer, the learned Chief Judicial Magistrate while passing the impugned
order dated 15.07.2019 observed that the investigating officer has submitted an application for issuance of proclamation order against Prem Rai,
Lacchuman Rai @ Kapil Rai and Manager Rai. The application is accepted. Office is directed to issue proclamation order against the aforesaid
accused persons. The aforesaid order dated 15.07.2019 would also make it clear that the learned Chief Judicial Magistrate failed to apply his judicial
mind to the facts of the case. He also failed to appreciate the requirements of law. The order does not indicate that the court had any ‘reason to
believe’ that the petitioners were either absconding or concealing themselves even after issuance of the warrant of arrest.
26. Regard being had to the discussions made above and the statutory provisions prescribed under Sections 73 and 82 of the CrPC, the orders
impugned dated 27.03.2019 and 15.07.2019 can not be sustained.
27. Accordingly, the orders dated 27.03.2019 and 15.07.2019 passed by the learned Chief Judicial Magistrate, Saran in Madhaura P.S. Case No.570
of 2018 dated 30.11.2018 are set aside.
28. The application stands allowed.
29. However, before parting with the case, I would like to clarify that the order herein passed by this Court would not mean that the police officers are
denuded of their power to apprehend the petitioners. The powers of arrest conferred upon the police under Section 41 of the CrPC do not require any
order from a Magistrate. Section 41 of the CrPC enumerates nine categories of cases in which a police officer may arrest a person without an order
from a Magistrate and without a warrant. The powers under Section 41 of the CrPC can be exercised by the police without court’s intervention.
If any person accused of a non-bailable offence is not evading arrest, then also he can certainly be arrested by the police in exercise of their
discretionary power to arrest under Section 41 of the CrPC.
