2019 (11) TMI 1815 - HC - Indian Laws

Warrants issued by the Magistrate against the petitioner - whether Magistrate had reason or occasion to exercise his discretion to decide whether the petitioner was evading his arrest or not? - authorisation of police custody - HELD THAT - The provisions of Section 41 of the Cr.P.C. are quite clear that unless a cognizable offence is committed by a person in the presence of such police officer, police officer cannot arrest an accused only on the basis of his whims that he suspects the said person to have committed some offence. If such person has committed some cognizable offence, which is punishable for imprisonment, then before arresting the person, the police officer has to satisfy himself that the arrest of such person is necessary; for the purposes delineated in the Section itself. This court finds reliance of the counsel for the petitioner on ARNESH KUMAR VERSUS STATE OF BIHAR ANR 2014 (7) TMI 1143 - SUPREME COURT , befitting in the facts of the case. In that judgment, the Hon'ble Supreme Court has unequivocally held that before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section. As a necessary corollary, this would mean that if the conditions mentioned in these provisions are not complied with by the investigating officer, the arrest of the petitioner, from very inception, may be rendered invalid, inviting the adverse legal consequences, even for the concerned police officer. This court also finds that more often then not, the police use the power of the Magistrate to issue warrant of arrest against an accused, only as a tool to avoid its responsibility to carry out the investigation to the logical end; and only for the purpose of getting such an accused declared as proclaimed offender. This methodology is normally adopted by the police just to get rid of the responsibility of putting a report before the Magistrate qua investigation, which otherwise is a mandate of law cast upon the police, or even to avoid arresting an accused in inconvenient cases or inconvenient circumstances. As a result, lots of persons are got declared as proclaimed offenders; and forgotten altogether by the police thereafter - this court is also of the view that before the Magistrate/court has taken cognizance of any offence, the power of issuance of warrants of arrest under any provision of Cr.P.C, on an application of a police officer, cannot be invoked by the Magistrate as a routine matter. Undisputedly, the petitioner has not been arrested by the police despite having power to arrest him without warrant. Therefore, there is nothing on record of the present petition; showing whether the investigating officer was ever satisfied qua the requirement of the petitioner to be arrested or not. This court is presented with only an application moved by the police officer before the Magistrate; seeking issuance of warrant against the petitioner. The said application is silent qua any reason, which requires assistance from the court for arresting the petitioner - By perusing the warrants issued by the Magistrate also, it is quite clear that the Magistrate has issued the warrant only to enlarge the effort of the police qua its investigation; as the reason for issuing warrant of arrest. The only other reason mentioned is that there is no stay of arrest qua the petitioner by any other court. Although the Magistrate may not be required to record any detailed reasons as such for issuing warrants, however, this court is of the view that none of these reasons given in this case is germane to the provisions under which the Magistrate is required to exercise his powers to issue warrants of arrest. There is nothing, either in the order passed by the Magistrate, from which it can be discernible that the Magistrate had some reasons or material to justify the discretion exercised by him. This court finds that impugned warrants issued by the Magistrate cannot be sustained. Hence, the present petition is partly allowed. The impugned warrants of arrest and consequent orders impugned in the present petition are quashed.

Summary

Issues Involved:
1. Quashing of FIR No. 150 dated 14.08.2018.
2. Challenge to the warrants of arrest issued by the Magistrate.

Detailed Analysis:

1. Quashing of FIR No. 150 dated 14.08.2018:
At the outset, the counsel for the petitioner submitted that the petitioner does not press the present petition concerning the challenge to the FIR as such and restricts the petition only to challenge the warrants issued by the Magistrate against the petitioner in the said FIR. Consequently, the court did not address the merits of the case concerning the FIR.

2. Challenge to the warrants of arrest issued by the Magistrate:
The petitioner contended that the warrants had been issued by the Magistrate in a mechanical manner without any reason reflected in the application moved by the police. The counsel argued that the exercise of discretion by the Magistrate stands vitiated, being in negation of law as laid down by the Hon'ble Supreme Court in the case of State through Central Bureau of Investigation Vs. Dawood Ibrahim Kaskar. The petitioner further argued that the police's failure to disclose any reason in their application violated Section 41(1)(b)(ii) of Cr.P.C., rendering the arrest invalid.

The respondents submitted that the petitioner was involved in a heinous crime of huge fraud. However, they did not dispute that the application moved by the investigating officer for obtaining the warrant from the Magistrate lacked any reason, merely stating that the petitioner was evading arrest. The respondents argued that the Magistrate is not required to record any reasons for issuing warrants of arrest against an accused.

The court examined the relevant provisions of Cr.P.C., including Sections 41, 47, 48, 58, 70 to 73, 82, 87, and 89, which deal with the arrest of a person without a warrant, the power of the Magistrate to authorize detention, and the issuance of warrants against a person accused of a non-bailable offense. The court noted that a police officer has almost omnipresent power to arrest a person without a warrant, provided certain conditions are met, such as having reasons to believe or suspect the person's involvement in a cognizable offense.

The court emphasized that the role of the Magistrate during the investigation is to ensure fairness and protect individual liberty, not to act as a collaborator with the police. The court highlighted that Section 73 of Cr.P.C. confers power upon the Magistrate to issue warrants against a person evading arrest, but this power must be exercised judicially and not as a routine matter to aid the police.

The court found substance in the petitioner's argument, noting that the application moved by the police lacked any specific reasons or obstacles preventing the arrest of the petitioner without a warrant. The court also observed that the Magistrate's order issuing the warrant did not contain any germane reasons or material to justify the exercise of discretion.

Judgment:
The court held that the impugned warrants issued by the Magistrate could not be sustained and quashed the warrants of arrest and consequent orders. However, the court clarified that this decision does not preclude the police or the Magistrate from proceeding further in the matter in accordance with the law. The court directed that a copy of the order be sent to all Magistrates and Courts exercising criminal jurisdiction in Punjab, Haryana, and Union Territory, Chandigarh.