2013 (12) TMI 1746 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the petitions.
2. Legality of the order passed u/s 73 of the Code of Criminal Procedure, 1973.
3. Applicability of section 465 of the Code to the impugned order.

Summary:

1. Maintainability of the Petitions:

The court addressed the preliminary objection regarding the maintainability of the petitions under Article 226 of the Constitution of India and section 482 of the Code. It was argued that the petitioners had an alternative remedy u/s 397 of the Code. However, the court referred to the Supreme Court's decision in Dhariwal Tobacco Products Limited v. State of Maharashtra, (2009) 2 SCC 370, which held that an application u/s 482 of the Code cannot be dismissed solely because an alternative remedy of filing a revision application u/s 397 of the Code is available. Consequently, the preliminary objection was rejected, and the petitions were held to be maintainable.

2. Legality of the Order Passed u/s 73 of the Code:

The court examined the application made by the respondents for the issuance of a warrant u/s 70 of the Code. The application stated that the accused were evading arrest and not cooperating with the investigation. The Chief Judicial Magistrate issued the warrant, stating it was necessary for the investigation. The court referred to the Supreme Court's decision in State through Central Bureau of Investigation v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494, which held that a warrant of arrest u/s 73 of the Code cannot be issued solely for the production of the accused before the police in aid of investigation. The court found that the impugned order was contrary to this decision, as the warrant was issued solely in aid of investigation, rendering the order legally infirm and unsustainable.

3. Applicability of Section 465 of the Code:

The respondents argued that even if the impugned order was erroneous, it could not be set aside unless it occasioned a failure of justice, as per section 465 of the Code. The court analyzed section 465 and concluded that it applies to final judgments and not to ancillary proceedings during the investigation and trial. The court referred to various Supreme Court decisions, including Wille (William) Slaney v. State of M.P., (1955) 2 SCR 1140, and Rattiram v. State of M.P., (2012) 4 SCC 516, which emphasized that procedural errors do not vitiate the trial unless they cause substantial prejudice. The court held that section 465 could not be invoked in respect of an order passed u/s 73 of the Code for the issuance of a warrant u/s 70 of the Code. Therefore, the reliance on section 465 by the respondents was misplaced.

Conclusion:

The petitions were allowed, and the impugned order dated 28.10.2013 passed by the Chief Judicial Magistrate, Surat, was quashed and set aside. The court directed that the petitioners, who had already been arrested, be treated as having been arrested in exercise of powers u/s 41 of the Code. The request for a stay of the judgment was declined.