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TMI Blog1997 (5) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Court, Greater Bombay on November 4, 1993 against 198 accused persons, showing 45 of them absconders, for commission of various offences punishable under the Indian Penal Code, the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' for short), Arms Act, 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. 3. 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 cases 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 (5)/93/S.T.F. Bombay on November 19, 1993 and took up further investigation with permission of the Designated Court. 4. 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 measures to compel them to appear before the Investigating Agency for the purpose of intended further investigation. According to CBI under Section 73 of the Code and Section 8(3)(a) of TADA the Designated Court was fully empowered to issue warrants of arrest and proclamations. In rejecting the above contentions 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 under the 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 Desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 a process issued under Section 204 of the CrPC, 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 of, or in aid of, investigation. The process contemplated is a process to face trial. (emphasis supplied) 7. The High Court further observed : We are conscious that the view we are taking is likely, in certain cases such as the present one, to hamper investigation. However, this is not a matter for us. We have construed the provisions of the Code and have found that no power is conferred for providing for police custody after cognizance of an offence is taken. (emphasis supplied) 8. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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-Charge to make further investigation and it reads as under : Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded 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 or reports 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). 9. In H.N Rishbud v. State of Delhi 1955CriLJ526 , this Court dealt with the definition of 'investigation' under the CrPC, 1898 (hereinafter referred to as the 'old Code'), which is same under the new Code and aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate 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 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 or trial. If the case of which he has previously taken cognizance 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 CrPC in such situations is a matter best left to the discretion of the Magistrate. 11. 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 of an offence, to authorise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 309(2), but he who comes 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 had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167. 13. 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 had 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 provisions of the Code and TADA relating to issuance of processes. 14. Chapter VI of the Code, which is captioned as 'processes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83; and even deprive him of such property if he does not appear within the time prescribed under Section 85. 17. Chapter XVI relates to commencement of proceedings before Magistrates and Section 204 appearing therein enables 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. 18. Coming now to the relevant provisions of TADA we may first refer to sub-section (3) of Section 8 relating to proclamation for the 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offender or person who has been accused of a non-bailable offence and who has eluded pursuit . Although the power is infrequently exercised, there appears to be no objection to conferring it on all Magistrates of the first class and all.... (emphasis supplied) 21. 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 warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 of its best efforts 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)]. 24. 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 summons 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. 25. Now that we have found that Section 73 of the Code is of general application and that in course of the invest ..... 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