1997 (5) TMI 453 - SC - Indian Laws

Summary

Issues Involved:
1. Invocation of Section 73 of the CrPC, 1973.
2. Issuance of non-bailable warrants and proclamations.
3. Remand to police custody post-cognizance.
4. Role of Magistrate during investigation.

Issue-wise Summary:

1. Invocation of Section 73 of the CrPC, 1973:
The principal question was when and under what circumstances a Court can invoke the provisions of Section 73 of the CrPC, 1973. The Supreme Court held that Section 73 confers power upon a Magistrate to issue a warrant during investigation for apprehension of a person accused of a non-bailable offence and evading arrest. The Court stated, "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."

2. Issuance of Non-bailable Warrants and Proclamations:
The CBI moved applications for issuance of non-bailable warrants and proclamations under Section 8(3)(a) of TADA. The Designated Court rejected these applications, stating that after cognizance was taken, no process could be issued to aid investigation under Section 73 of the Code. The Supreme Court set aside this order, directing that the Designated Court dispose of the applications in accordance with law, emphasizing that "Section 73 coupled with Section 167 of the Code bestowed upon the Court such power."

3. Remand to Police Custody Post-cognizance:
The Court addressed whether a person arrested during further investigation could be remanded to police custody under Section 167 post-cognizance. It held 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... and not to an accused who is subsequently arrested in course of further investigation." Thus, the Court can authorize detention in police custody under Section 167 for further investigation.

4. Role of Magistrate During Investigation:
The Supreme Court clarified that a Magistrate plays a role during investigation, such as holding test identification parades or recording confessions. However, the issuance of a warrant under Section 73 for production before the police must involve judicial discretion. The Court noted, "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."

Conclusion:
The appeals were allowed, and the Designated Court was directed to reconsider the CBI's applications in light of the Supreme Court's observations. The judgment emphasized the Magistrate's role in balancing investigative needs with judicial oversight.