http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: STATE THROUGH CBI

       Vs.

RESPONDENT: DAWOOD IBRAHIM KASKAR & ORS.

DATE OF JUDGMENT:       07/05/1997

BENCH: M.K. MUKHERJEE, G.T. NANAVATI, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT: Present:                Hon’ble Mr.Justice M.K. Mukherjee                Hon’ble Mr.Justice G.T. Nanavati                Hon’ble Mr.Justice B.N. Kirpal Ashok Desai,  Attorney General,  and Altaf Ahmad, Additional Solicitor General,  Pallav Shishodia,  P. Parmeswaran, Advs. with them for the appellant. Kapil Sibal,  Sr. Adv.  (A.C.), Ashok Grover, Sr. Adv. Rajiv Sharma, Adv. (A.C.), T.C. Sharma, Ajay Sharma and Ms. Neelam Sharma, Advs., with them for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: M.K. MUKHERJEE, J.      The principal  question that is required to be answered in these appeals is when and under what circumstance a Court can invoke  the provision  of Section  73  of  the  Code  of Criminal Procedure,  1973 (‘Code’  for short).  The question arises in this way.      On March  12, 1993  a series  of bomb  explosions  took place in  and around  the city of Bombay which result in the death of  257 persons, injuries to 713 persons and damage to properties worth  Rs. 27  crores (approximately).  Over  the explosion  27   criminal  cases   were  registered   and  on completion of  investigation a  composite  charge-sheet  was forwarded  to   the  Designated  Court,  Greater  Bombay  on November 4,  1993 against 198 accused persons, showing 45 of them  absconders,   for  commissioner  of  various  offences punishable under  the Indian  Penal Code,  the Terrorist and Disruptive Activities  (Prevention) Act,  1987  (‘TADA’  for short) Arm  Acts, 1959,  Explosives Substances Act, 1908 and other Acts.  On that  charge-sheet the Designated court took cognizance and  the case  registered thereon was numbered as B.B.C. (Bomb Blast Case) No.1 of 1993.      A few  days thereafter  - on  November 11,  1993 to  be precise -  the Government  of India, with the consent of the Government of  Maharashtra, issued a notification entrusting further investigation  in the  above case  to Delhi  Special Police Establishment (CBI) under the provisions of Section 5 of  the   Delhi  Special  Police  Establishment  Act,  1946. Pursuant thereto  CBI registered  a case  being No.  R.C.  1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

(5)/93/S.T.F. Bombay  on  November  19,  1993  and  took  up further investigation  with  permission  of  the  Designated Court.      In course  of such  investigation CBI apprehended Mohd. Salim Mira  Moiuddin  Shaikh  @  Salim  Kutta,  one  of  the absconders mentioned  in the charge-sheet, on July 24, 1995. He made  a confessional  statement before  Shri S.K. Saikia, Deputy Inspector  General of  Police, CID,  Ahmedabad, which was recorded  by him on August 18 and 19, 1995 under Section 15 of  TADA.  In  that  confession  he  disclosed  that  the respondent Nos.  2 to  7 herein  (hereinafter referred to as the ‘respondents)  had taken  active part  in  the  criminal conspiracy   which was the subject matter of B.B.C. No. 1 of 1993.  Thereafter   on  May   2,  1996,  the  CBI  moved  an application before  the Designated  Court (Misc. Application No. 201  of 1996)  wherein  it  stated  that  following  the disclosure of  the involvement  of the  respondents  in  the offences in  question, raids  has been  conducted  at  their known hideouts  to arrest them but none could be apprehended in spite  of best  efforts as they were deliberately evading their arrest to escape the clutches of law and, accordingly, prayed for  issuance  of  non-bailable  warrants  of  arrest against them  to initiate  further proceedings in the matter to apprehend  them and/or  to take further action to declare them as  proclaimed offenders. Two other applications (Misc. Application Nos.  210 and 211 of 1996) were thereafter moved on June  3, 1996  for publication  of written  proclamations under Section  8(3)(a) of  TADA as also for issuance of open dated non-bailable  warrants of  arrest so  that ‘Red Corner Notices’ might be issued against them. According to CBI such notices are  required to  be got  issued by INTERPOL to seek police  assistance  in  a  foreign  country  to  locate  and apprehend fugitives.      When the  three applications  came  up  for  hearing  a learned Advocate  who was  appearing for some of the persons arraigned in  B.B.C. No.  1 of  1993  submitted  before  the Designated  Court  they  were  entitled  to  copies  of  the applications and  a right  of hearing on their merits in the matter. The Designated Court accepted his submission; and on receipt  of  the  copies  of  the  application  the  learned Advocate  filed  a  rejoinder  thereto.  After  hearing  the parties the  Designated Court,  by its order dated August 1, 1996, rejected  the applications.  The above  order is under challenge in these appeals preferred at the instance of CBI.      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.  According to  the Designated Court, though

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

under code further investigation was not barred there was no provision therein which entitled the Investigating Agency to seek for  and obtain  aid from the Court for the same. Since the above  findings were  recorded by  the Designated  Court relying solely upon the judgment of the Bombay High Court in Mohammad Yasin  Mansuri  vs.  State  of  Maharastra.  (1994) Crl.L.J. 1854,  it will be necessary to refer to the same in some details.  In that case investigation into an offence of murder and  other related offences was taken up initially by the  Officer-in-Charge   of  Byculla   Police  Station   and thereafter by  a Deputy Commissioner of Police (DCP) of CID. During the investigation the Designated Court, on the prayer of the DCP, issued non-bailable warrants for apprehension of some of the accused involved in those offences. Thereafter a charge-sheet came  to be filed against several accused, some of whom  were before  the Court  and  some  other  including Mansuri (the petitioner before the High Court) were shown as absconding. In  the very  day  the  charge-sheet  was  filed Designated Court  took cognizance  of the offences mentioned therein. Few months later Mansuri came to be arrested by the CBI, Delhi in connection with some other offence. On receipt of that  information the DCP filed an application before the Designated Court  for warrants  of arrest  and production of Mansuri before  it. The prayer was allowed and in due course Mansuri was brought to Bombay and handed over to DCP. On the following day  Mansuri was  produced before  the  Designated Court; and  on such  production the  prosecution prayed  for remand of  Mansuri to police custody. The prayer was allowed and the Designated Court remanded him to police custody, but kept the  order in abeyance for a few days to enable Mansuri to challenge  the same  in a  superior court.  Assailing the above order  of the  Designated  Court,  Mansuri  moved  the Bombay High Court. Before the High Court it was submitted on behalf of  Mansuri that  once investigation  into an offence was complete and a charge-sheet was filed, the provisions of Section 309  of the Code came into operation and sub-section (2) of  the said  Section left no discretion to a Court. The only course open to the Court then was to remand the accused to judicial  custody. It  was further submitted that whereas Section  167  conferred  a  discretion  upon  the  Court  of authorising detention  of  an  accused  either  in  judicial custody or  police custody  such discretion  was  completely absent in  Section 309  of the  Code.  Accordingly,  it  was submitted that  the order  passed by  the  Designated  Court granting Mansuri  to Police custody was without jurisdiction and  liable   to  be  set  aside.  In  accepting  the  above contention and  quashing the  impugned order  the High Court firstly observed:      "It would,  therefore, follow  that      the warrants  which were  issued by      the Designated Court for production      of the  petitioner could  not  have      been in  aid of  investigation  but      could only  have  been  by  way  of      process issued under Section 204 of      the  Code  of  Criminal  Procedure.      Issue of  warrants after cognizance      of an  offence is taken would  be a      process contemplated  under Section      204(1)(b)  of  the  Code,  i.e.  it      would be  a process  to face trial.      Indeed.  We   do   not   find   any      provision contained in the Code for      issue of  warrants  of  arrest  and      custody of  accused for the purpose

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

    of, or  in aid  of,  investigation.      The  process   contemplated  is   a      process to face trial."              (emphasis supplied)      The High Court further observed:      "We are  conscious that the view we      are taking  is likely,  in  certain      case such  as the  present one,  to      hamper investigation. However, this      is not  a matter  for us.  We  have      construed the provision of the Code      and have  found that  no  power  is      conferred for  providing for police      custody  after  cognizance  of  the      offence is taken."              (emphasis supplied)      In view  of the  provision of  Chapter XII and those of Section 309(2)  of the  Code we  are constrained to say that the above quoted observations have been made too sweepingly. Chapter XII  relates to  information to the police and their powers to investigate. Under Section 154 thereof whenever an Officer-in-Charge  of   a  police   station   receives   and information relating  to  the  commission  of  a  cognizable offence he  is required  to reduce  the same  in writing and enter the  substance thereof  in a  prescribed book. Section 156 invests  the Officer-in-Charge  of a police station with the power  to investigate  into cognizable  offences without the order  of a  Magistrate and  Section 157  lays down  the procedure  for   such  investigation.   In  respect   of  an information given  of the  commission  of  a  non-cognizable offence, the  Office-in-charge required under Section 155(1) to enter the substance thereof in the book so prescribed but he has  no power  to investigate  into the  same without  an order of  the competent Magistrate. Armed with such an order the Officer-in-charge  can however exercise all the power of investigation he  has in  respect of  a  cognizable  offence except that  he cannot  arrested during investigation has to be dealt  with by  the  investigation  Agency,  and  by  the Magistrate on  his production  before him,  is  provided  in Section 167  of the Code. The said Section contemplates that when the  investigation cannot  be completed within 24 hours fixed by  Section 57  and there  are grounds to believe that the charge  levelled against  the person  arrested  is  well founded it  is obligatory  on the  part of the Investigation Officer  to   produce  the   accused  before   the   nearest Magistrate. On  such production the Magistrate may authorise the detention  of the  accused  initially  for  a  term  not exceeding 15  days either  in police custody, or in judicial custody. On  expiry of  the  said  period  of  15  days  the Magistrate  may   also  authorise   his  further   detention otherwise than  in police  custody if  he is  satisfied that adequate grounds  exist for  such  detention.  However,  the total period  of detention  during investigation  cannot  be more than  90 days  or 60 days, depending upon the nature of offences mentioned  in the  said Section.  Under Sub-section (1) of  Section 173 the Officer-in-charge is to complete the investigation without unnecessary delay and as soon as it is completed to  forward, under Sub-section (2) thereof, to the competent Magistrate a report in the form prescribed setting forth  the   names  of   the  parties,  the  nature  of  the information and  the names  of the persons who appears to be acquainted with  the circumstances  of the case. Sub-Section (8)  entitles   the  Officer-in-Charges   to  made   further investigation and it reads as under:      "Nothing in  this section  shall be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

    deemed    to    preclude    further      investigation  in   respect  of  an      offence after  a report  under Sub-      section (2) has been forward to the      Magistrate  and,  where  upon  such      investigation,   the   officer   in      charge  of   the   police   station      obtains further  evidence, oral  or      documentary, he  shall  forward  to      the Magistrate  a further report to      the  report regarding such evidence      in the  form  prescribed,  and  the      provisions of  sub-section  (2)  to      (6) shall,  as far as may be, apply      in  relation   to  such  report  or      reports as  they apply  in relation      to a  report forwarded  under  sub-      section (2)."      In H.N.  Rishbud vs. State of Delhi, [AIR 1955 SC 196], this Court  dealt with  the  definition  of  ‘investigation’ under the  Code of  Criminal  Procedure,  1898  (hereinafter referred to  as the ‘old Code’), which is same under the new Code and  after analysing  the provisions  of Chapter XIV of that Code   (which  corresponds to  Chapter XII of the Code) stated:      "Thus under  the Code investigation      consists generally of the following      steps: (1)  Proceeding to the spot,      (2) Ascertainment  of the facts and      circumstance  of   the  case,   (3)      Discovery   and   arrest   of   the      suspected offender,  (4) Collection      of   evidence   relating   to   the      commission of the offence which may      consist of  (a) the  examination of      various  persons   (including   the      accused) and the reduction of their      statements  into  writing,  if  the      officer thinks  fit, (b) the search      of  places  or  seizure  of  things      considered   necessary    for   the      investigation and to be produced at      the trial, and (5) Formation of the      opinion  as   to  whether   on  the      material collected  there is a case      to  place   the  accused  before  a      Magistrate  for  trial  and  if  so      taking the  necessary steps for the      same by  the filing  of  a  charge-      sheet under Section 173."      Though  under   the  old  Code  there  was  no  express provision -  like sub-section (8) of Section 173 of the Code - statutorily  empowering in  Police to  further investigate into an  offence in  respect of  which  a  charge-sheet  has already  been  filed  and  cognizance  taken  under  Section 190(1)(b), such  a power was recognised by this Court in Ram Lal Narang vs. State [AIR 1979 SC 1791]. In exemplifying the situation which  may prevail  upon the  police  to  take  up further investigation  and the  procedure the Court may have to follow  on receipt  of the  supplemental report  of  such investigation, this Court observed:      "It is  easy to  visualise  a  case      where fresh  material may  come  to      light which would implicate persons      not previously  accused or  absolve

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

    persons already  accused.  When  it      comes  to   the   notice   of   the      investigating agency that  a person      already accused of an offence has a      good alibi,  is it  not the duty of      that  agency   to  investigate  the      genuineness of  the plea  of  alibi      and  submit   a   report   to   the      Magistrate?    After     all    the      investigating  agency  has  greater      resources at  its  command  than  a      private   individual.    Similarly,      where the  involvement  of  persons      who are  not already  accused comes      to the  notice of the investigating      agency,  the  investigating  agency      cannot keep  quiet  and  refuse  to      investigate the  fresh information.      It is their duty to investigate and      submit a  report to  the Magistrate      upon the  involvement of  the other      persons. In  either case, it is for      the Magistrate  to decide  upon his      future course  of action  depending      upon the stage at which the case is      before him. If he has already taken      cognizance of  the offence, but has      not proceeded  with the  enquiry of      not proceeded  with the  enquiry of      trial, he  may direct  the issue of      process    to    persons    freshly      discovered to  be involved and deal      with all  the accused,  in a single      enquiry of  trial. If  the case  of      which he  has already  proceeded to      some  extent,  he  may  take  fresh      cognizance of the offence disclosed      against the  newly involved accused      and proceed  with  the  case  as  a      separate  case.   What   action   a      Magistrate is to take in accordance      with the  provisions of the Code of      Criminal    Procedure    in    such      situations is a matter best left to      the discretion of the Magistrate."      In keeping  with the  provisions of  Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2)  of the  Code stands  in the  way of a Court, which has  taken cognizance  on an offence, to authorise the detention of a person, who is subsequently brought before it by the  police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code.  Section 309  relates to the power of the Court to postpone the  commencement of  or adjournment of any inquiry of trial and sub-section (2) thereof reads as follows:      "If   the   Court,   after   taking      cognizance  of   an   offence,   or      commencement  of  trial,  finds  it      necessary or  advisable to postpone      the commencement  of,  or  adjourn,      any inquiry  or trial, it may, from      time to  time, for  reasons  to  be      recorded, postpone  or adjourn  the      same on  such terms  as  it  thinks      fit, for  such time as it considers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

    reasonable, and  may be  a  warrant      remand the accused if in custody.      Provided that  no Magistrate  shall      remain an accused person to custody      under  this   Section  for  a  term      exceeding fifteen days at a time;"      xxx     xxx      xxx    xxx      xxx     xxx      xxx    xxx      There cannot be any manner of doubt that the remand and the custody  referred to  in the  first proviso to the above sub-section are  different from  detention in  custody under Section 167.  While remand  under the  former relates  to  a stage after  cognizance and can only be to judicial custody, detention  under   the  latter   relates  to  the  stage  of investigation and  can initially be either in police custody or judicial  custody. Since,  however, even after cognizance is taken of an offence the police has a power to investigate into it  further, which  can be exercised only in accordance with Chapter  XII, we  see  no  reason  whatsoever  why  the provisions of  Section 167  thereof would  not  apply  to  a person who come to be later arrested by the police in course of  such   investigation.  If   section  309(2)   is  to  be interpreted -  as has  been interpreted  by the  Bombay High Court in  Mansuri (supra)  - to  mean that  after the  Court takes cognizance of an offence it cannot exercises its power of detention  in police  custody under  Section 167  of  the Code, the  Investigating Agency  would  be  deprived  of  an opportunity to  interrogate a person arrested during further investigation, even  if it  can on  production of sufficient materials, convince  the Court  that his  detention  in  its (police) custody  was essential  for that  purpose.  We  are therefore of  the opinion  that the  words  "accused  if  in custody" appearing  in Section 309(2) refer and relate to an accused who  was before  the Court when cognizance was taken or when  enquiry or  trial was  being held in respect of him and not to an accused who is subsequently arrested in course of further  category is  concerned he  can  be  remanded  to judicial custody  only in view of Section 309(2), but he who come under  the second  category will be governed by Section 167  so   long  as  further  investigation  continues.  That necessarily means  that in  respect of  the latter the Court which has  taken cognizance  of the offence may exercise its power to  detain him  in  police  custody,  subject  to  the fulfillment  of  the  requirements  and  the  limitation  of Section 167.      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.  While Mr.  Ashok  Desai,  the learned Attorney  General who  appeared on  behalf  of  CBI, submitted that  Section 73  coupled with  Section 167 of the Code bestowed  upon the  Court such  power, Mr. Kapil Sibal, who appeared as amicus curie (the respondents did not appear inspite of  publication of  notice in  newspaper)  submitted that Court  has no  such power.  To appreciate  the steps of reasoning of the learned counsel for their respective stands it will  be necessary  to refer to the relevant provision of the Code and TADA relating to issuance of processes.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

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. Section  73 which  is required  to be interpreted in these appeals, read as under:      "73(1)    The     Chief    Judicial      Magistrate of  a Magistrate  of the      first class may direct a warrant to      an   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  enter  on,  any      land or  other property  under  his      charge."      Section 76 requires the police officer or other person, who executes the warrant to bring the person arrested before the Courts  (unless he  is released in terms of Section 71), within twenty four hours.      Section 82,  appearing in  part C empowers the Court to issue proclamation;  and so  far as  it is  relevant for our present purpose, read as under:      "82(1) If  any Court  has reason to      believe   (whether   after   taking      evidence or  not) that  any  person      against whom  a  warrant  has  been      issued by  it has  absconded or  is      concealing  himself  so  that  such      warrant cannot  be  executed,  such      Court   may   publish   a   written      proclamation   requiring   him   to      appear at  a specified place and at      a  specified  time  not  less  than      thirty  days   from  the   date  of      publishing such proclamation.              (emphasis supplied)      xxx            xxx              xxx      xxx      (2)            xxx              xxx      xxx      (3)            xxx              xxx      xxx      After issuing  a proclamation  in terms  of  the  above provision, the  Court  may  also  order  attachment  of  the property of the proclaimed person under Section 83; and even deprive him  of his  such property  if he  does  not  appear within the time prescribed under Section 85.      Chapter XVI  relates  to  commencement  of  proceedings before Magistrates  and Section 204 appearing therein enable a Magistrate,  who takes  cognizance of an offence, to issue process (summons/warrant)  against the  accused if  he finds sufficient grounds to proceed against him.      Coming now  to the  relevant provisions of TADA was may first refer  to sub-section  (3) of  Section 8  relating  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

proclamation for  and attachment of the property of a person accused of  an offence  punishable under TADA. Clause (a) of the above  sub-section lays  down that  if upon  a report in writing made  by a  police officer or an officer referred to in sub-section  (1) of  Section 7,  any Designated Court has reason to  believe that  any person,  who has  committed  an offence  punishable   under  the   Act  or   any  rule  made thereunder, has  absconded or  is concealing himself so that he may  not be  apprehended, such Court may, notwithstanding anything contained   in  Section 82  of the  Code, publish a written proclamation  requiring him to appear at a specified place and at a specified time not less than fifteen days but not more  than thirty  days for  the date  of publication of such proclamation;  and sub-section  (3)(b) thereof entitles the Court  issuing the  proclamation to  order attachment of property belonging  to  the  proclaimed  offender  and  then proceed in accordance with Section 83 to 85 of the Code. For all intents and purpose, therefore, sub-section 8(3) of TADA seeks to  achieve the  same object  as part  C of Chapter VI does, namely  to compel appearance of the accused. The other section to  which reference need be made is Section 20 which makes  the   provisions  of   the  Code  applicable  to  the proceeding under TADA, subject to the modification envisaged therein.      The contention of Mr. Desai was that though in exercise of its  power under  Section 41 of the Code a police officer may without an order from a Magistrate and without a warrant arrest a  person who  is concerned in any cognizable offence of against  whom a  reasonable complaint has been made, or a credible information  has  been  received  or  a  reasonable suspicion exists, of his having been so concerned, under the Code the  police has  no power  of its  own  to  compel  his appearance if  he evades  the arrest. It is in that context, Mr. Desai  argued, that  the Court  has been given the power under Section 73 to issue warrant of arrest for apprehension of such  a person;  and, thereafter,  if need  be, to  issue proclamation  and   pass  order   for  attachment   of   his properties. In  joining issues,  Mr. Sibal  urged  that  the scheme of  the Code  is that the police has complete control of the  investigation and  is  not  aided  by  any  judicial authority. Once  the investigation  culminates in the police report under  Section 173(2)  that the  Court  steps  in  by taking cognizance  thereupon and  issuing summons or warrant under Section 204 against the person arraigned. According to Mr. Sibal,  in the scheme of the Code it is unthinkable that the  police,   while  investigating  under  Chapter  XII  is entitled to seek the help of a Magistrate for the purpose of issuance of  a warrant of arrest in aid of investigation. As regards Section  73, Mr.  Sibal’s argument  was that  in the scheme of part B of Chapter VI that section only lays down a procedure to  enable a  Court to  execute a  warrant already issued under  Section 204  but does  not confer any right to issue a warrant, much less during investigation.      At this stage it is pertinent to mention that under the old Code  the corresponding  provision was  Section 78;  and while recommending  its amendment  the Law Commission in its 41st report stated, inter alia:      "6.8 Section  78 at present confers      a power  on the District Magistrate      or  Sub-Divisional   Magistrate  to      issue a special type of "warrant to      a land-holder, farmer or manager of      land within  the district  of  sub-      division  for   the  arrest  of  an      escaped     convict,     proclaimed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

    offender or  person  who  has  been      accused of  a non-bailable  offence      and  who   has   eluded   pursuit".      Although the  power is infrequently      exercised, there  appear to  be  no      objection to  conferring it  on all      Magistrates of  the first class and      all .............      ...................................      ....................."              (emphasis supplied)      Apart  from   the  above   observations  of   the   Law Commission, from  a bare  perusal  of  the  Section  (quoted earlier) it  is manifest  that it  confers a  power upon the class of  Magistrates mentioned therein to issue warrant for arrest of  three  classes  of  person,  namely,  i)  escaped convict, ii)  a proclaimed offender and iii) a person who is accused of  a non-bailable offence and is evading arrest. If the contention  of Mr. Sibal that Section 204 of the Code is the sole  repository of  the  Magistrate’s  power  to  issue warrant and  the various  Sections of part ‘B’ of Chapter VI including Section  73 only  lay down  the mode and manner of execution of  such warrant  a Magistrate  referred to  under Section 73  could not  - and would not - have been empowered to issue  warrant of  arrest for  apprehension of an escaped convict, for  such a  person can not come within the purview of Section  204 as  it relates  to  the  initiation  of  the proceeding and  not to  a stage  after  a  person  has  been convicted on conclusion thereof.      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 Sections 466 or 467 (Part  I) 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 presence would be to ask the Magistrate  to invoke  his powers  under Section  73 and thereafter those relating to proclamation and attachment. In such  an   eventuality,  the   Magistrate  can  legitimately exercise his  power under  Section 73,  for the person to be apprehended is  ‘accused of  a non-bailable  offence and  is evading arrest.’      Another factor  which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest  and that too during investigation is evident from the provisions  of part ‘C’ of Chapter VI of the Code, which we have earlier adverted  to. Needless to say the provisions of proclamation  and attachment  as envisaged  therein is to compel the  appearance of  a person  who is  evading arrest. Now, the  power of  issuing a  proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a  person ‘against whom a warrant has been issued by it’. In other  words, unless  the  Court  issues  a  warrant  the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where inspite

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

of its  best effects the police cannot arrest a person under Section 41.  Resultantly, if  it has  to take  the  coercive measures for  the apprehension  of such  a person  it has to approach the  Court to issue warrant of arrest under Section 73; and  if need  be to invoke the provisions of part ‘C’ of Chapter VI.  [Section 8 (3) in case the person is accused of an offence under TADA]      Lastly, we  may refer  to Section  90, which appears in part ‘D’ of Chapter VI of the Code and expressly states that the provisions contained in the Chapter relating to a summon and warrant,  and their issue, service and execution  shall, so far  as may  be, apply to every summon and every warrants of arrest  issued under  the Code.  Therefore, when  a Court issues a  warrant of  arrest, say  under Section  155 of the Code, any  steps that  it  may  have  to  subsequently  take relating to that warrant of arrest can only be under Chapter VI.      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 non-bailable 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  non-bailable 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.      On the conclusions as above we allow these appeals, set aside the  impugned order and direct the Designated Court to dispose of  the three  miscellanous  applications  filed  by C.B.I in  accordance with  law  and  in  the  light  of  the observations made herein before.      Before parting  with this  judgment was place on record our deep  appreciation for  the valuable assistance rendered by Mr. Desai and Mr. Sibal in deciding the issue involved in these appeals.