- (1.) THE defect no. 9(ii) is hereby ignored. So far defect no. 9(i) is concerned, the same be removed in course of day. This application is directed against the order dated 8.2.2013 passed by learned Special Judge (Vigilance), Ranchi in Special Case No.15 of 2009(R) (Vigilance P.S. Case No.11 of 2009) whereby and whereunder learned trial court passed an order for issuance of non - bailable warrant against the petitioner.
(2.) THE ground on which the impugned order is being sought to be quashed is that the order under which warrant of arrest was ordered to be issued against the petitioner is never in consonance with the provision as contained in Section 73 of the Code of Criminal Procedure, as the warrant of arrest was sought to be issued on the ground that only upon arrest of accused person something could be divulged in the matter and that the accused persons in that event could be forced to surrender before the court and that the sufficient evidences have been collected by the Investigating Officer but all those grounds are non est so far it relates to issuance of warrant of arrest in terms of the provision as contained in Section 73 of the Code of Criminal Procedure and thereby the order impugned is fit to be quashed. As against this, Mr. Shailesh, leaned counsel appearing for the Vigilance, submits that ample evidences have already been collected against the petitioner and, thereby if the Court has issued warrant of arrest on the basis of there requisition submitted by the Investigating Officer, no illegality has been committed and that the police does have power to arrest a person if he is an accused in a cognizable case. There is no dispute in the proposition of law that the police or the investigating agency does have power to arrest a person even in absence of warrant of arrest in a cognizable case but that power is subscribed by the conditions mentioned under Section 41 Cr.P.C. So far as the matter relating to issuance of warrant of arrest is concerned, that never seems to have been issued in accordance with law.
(3.) IN the context of the submission advanced on behalf of the parties, the provision of Section 73 of the Code of Criminal Procedure gets attracted which reads as follows: 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 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 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 be 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. From bare perusal of the section, it is manifest that it confers a power upon the Magistrate to issue warrant for arrest of three classes of person, namely, escaped convict (ii) a proclaimed offender and (iii) a person who is accused of a non -bailable offence and is evading arrest. Their Lordships in a case of State through C.B.I Vs. Dawood Ibrahim Kaskar [1997(2) East Cr.C 124 (SC)] taking into consideration the aforesaid provision as enshrined under Section 73 of the Code of Criminal Procedure and also recommendation of Law Commission in its 41st report did observe at paragraph 20 of the said judgment as under: "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 Section 466 or 467 (Part -1) 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 powers under Section 73 and thereafter those relating to proclamation an attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73 for the person to be apprehended is " accused of a non - bailable offence and is evading arrest." ;