R.R. Prasad, J. - (1.) Mr. Pasari, learned counsel appearing for the petitioner submits that the Vigilance has registered a case bearing Vigilance P.S case no.30 of 1999 (Special Case No.07 of 1999) in the year 1999, wherein number of persons were made accused, including this petitioner, who at the relevant point of time was posted as In-charge, Assistant Electrical Engineer but had nothing to do with the matter. In that case, the police submitted final form on 5.5.2001 whereby number of persons were charge sheeted whereas 1-2 persons were exonerated from accusation. After more than six years, an application was filed by the Investigating Officer before the court below for allowing him to go for further investigation against other accused persons. That application was rejected on 16.4.2007 on the ground that the Investigating Officer had not come forward with any fresh material. That order was never challenged. In the year 2010, again an application was filed for allowing the Investigating Officer to take up the matter for further investigation without disclosing any fresh material but that prayer was allowed by the court though on the same and similar facts, it had earlier been rejected. Subsequently, a requisition was filed by the Investigating Officer on 6.12.2013 stating therein about the materials collected against accused persons including the petitioner. On that basis, warrant of arrest was ordered to be issued, vide order dated 6.12.2013 which never appears to be in consonance with the provision as contained in Section 73 of the Code of Criminal Procedure which reads as under: "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 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.
(2.) From bare perusal of the section, it is manifest that it confers a power upon the Magistrate to issue warrant of arrest of three classes of persons, namely, escaped convict (ii) a proclaimed offender and (iii) a person who is accused of a non-bailable offence and is evading arrest.
(3.) While disposing of this application, I am not touching the merit of the case, rather confining only to the illegality and impropriety of the order dated 6.12.2013. It is evident that the order passed by the court has never been in consonance with the provision as only upon certain materials being placed before the court showing complicity of the petitioner, warrant of arrest was ordered to be issued whereas the provision, as referred to above, is that if a person, who is accused on a non-bailable offence, warrant of arrest can be issued against him provided it is placed before the court that the accused is evading arrest. This mistake is normally committed by the court as has been noted in number of cases. Earlier also order was passed in this respect wherein it has been held that before an order is passed for issuance of warrant of arrest conditions laid down in Section 73 of the Code get fulfilled but unfortunately that is not being adhered to. Therefore, it is reminded that whenever warrant of arrest is issued against a person accused of a non-bailable offence, the court must satisfy itself that conditions imposed as under Section 73 of the Code of Criminal Procedure gets satisfied.;