@JUDGMENTTAG-ORDER
Navaniti Pd. Singh, J.@mdashThe present application has been filed by the petitioners, inter alia, for two reliefs. First, the quashing of the first
information report and the consequential police investigations into the alleged misappropriation and defalcation of public funds and secondly the
order passed by the Chief Judicial Magistrate on 9.10.2006 purporting to be an order in terms of Section 73 of the Criminal Procedure Code
issuing non-bailable warrant of arrest against the petitioners at the request of the investigating agency. State has filed a counter affidavit and a
rejoinder thereto has been filed. Heard the parties and with their consent, this writ application is being disposed of at the stage of admission itself.
2. So far as the first contention is concerned, in my view, it is too premature for going into the correctness or otherwise of the allegation as made or
the defence in that regards. Suffice to say that the allegations are totally dependent on facts which are still to be investigated. Petitioners assert that
various works were taken up departmentally and advances were made and works were being carried out. None of the works were complete as
yet still an accounting was done and on basis of incomplete work misconceived allegations of misappropriation of funds and defalcation of funds
have been leveled, it is submitted that as there was time still available to complete the work and if the same was permitted, work would have been
complete. It is only with ulterior motives to disturb the working, the present prosecution has been launched. If petitioners, are given time to
complete the work then they would have completed the work within the specified time leaving no grievance whatsoever but taking action midway
cannot be justified. On the other hand, State submits that the matter in which work was picked up and the manner in which advances were made
and records maintained led the authorities to believe that there was large scale bungling going on. To my mind, it is too premature to decide on
either contention. Suffice to know that if time was still available to complete the work, the authorities should have first waited for the time to elapse
after warning the concerned parties and then taken action as the interest of the authorities would be to see that the work was properly done
according to specifications. Be that as it may, I am not inclined to interfere with the first information report or the investigation at this stage.
3. Coming to the next question of the police seeking the help of the learned Chief Judicial Magistrate in securing the presence of the petitioners by
filing an application in terms of Section 73 of the Criminal Procedure code and the Chief Judicial Magistrate issuing non-bailable warrant in this
case, I may just note that the first information report having been registered was received before the Chief Judicial Magistrate on 3.10.2006 and on
9.10.2006 an application was filed by the investigation agency for on warrant against the petitioners. The only explanation given is that in the short
period of six days, the police was unable to apprehend the accused persons who were absconding and, as such, required warrant from the Court
for their arrest.
4. To my mind, such a stand by the State is neither supported in fact nor in law. The first information report having been registered under Sections
408, 409, 120B of Indian Penal Code which are all cognizable offence, the police requires no warrant from court to arrest the accused persons.
Being cognizable offence, police has full authority to arrest the accused persons wherefrom they are. If police could not find them on their own then
this Court fails to understand when once warrants come in their hand, they would be able to find that very person. Warrant of arrest does not
throw light on the place where accused persons reside and/or hide. Non-bailable warrant of arrest would only authorise officers and confer
authority on them to arrest a person and produce them before the Court. In a cognizable offence, the police needs no such authorisation from the
Court much less in terms of Section 73 of Criminal Procedure Code as has been held by the Apex Court in the case of State vs. Daud Imbrahim
since reported in AIR 1997 S. C 2494 wherein in paragraph 23, it has been stated so:
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, it cannot be said that warrant of arrest could be issued by the Courts solely for the production of the accused before
the police in aid of investigation.
5. This position has been discussed in detail by this Court in a judgment since reported in Krishna Murari Yadav Vs. State of Bihar, . In the
present case, the Magistrate has applied no mind. He has acted in a totally mechanical manner. In a manner of speaking, he has passed an order in
most mechanical manner merely for the asking by the police. To my mind, the Magistrate has completely failed to exercise the jurisdiction in a
lawful manner. The police has equally misdirected itself. Both police and Magistrate failed to appreciate that in terms of Section 73 of Criminal
Procedure Code, the warrants can only be issued for production of an accused before the Court. This clearly predicates that warrants are not to
be issued for arrest of accused for taking their statement by the investigating authority or otherwise for any purposes of the investigation. These are
two different aspects of the matter and in this perspective, the Apex Court has held that no warrant can be issued on the prayer of investigating
agency in aid of investigation.
6. I, therefore, have no option but to quash the order dated 9.10.2006 by which non-bailable warrants have been issued against the petitioners as
the order is wholly without jurisdiction and de hors the provisions of Criminal Procedure Code. This writ application is, accordingly, allowed to the
extent as indicated above.
