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TMI Blog2019 (11) TMI 1815X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 482/483 Cr.P.C. for quashing of FIR No. 150 dated 14.08.2018 (Annexure P-2) registered under Sections 406, 420 120-B IPC at Police Station Phase-I, District SAS Nagar, Mohali and the orders dated 26.03.2019, 26.04.2019, 30.05.2019, 18.07.2019 27.08.2019 whereby the warrants of arrest were issued against the petitioner, as well as, the subsequent consequent orders. 2. At the outset, the counsel for the petitioner submits that for the time being, the petitioner does not press the present petition qua challenge to the FIR as such; and that he has been instructed by the petitioner, to restrict the present petition only qua challenge to the warrants issued by the Magistrate against the petitioner in the said FIR. 3. De hors any merits of the case qua the FIR, it is contended by the counsel for the petitioner that the warrants have been issued by the Magistrate in a mechanical manner. The application moved by the police, seeking issuance of warrants from the Magistrate, does not reflect any reason for the same. Therefore, the learned Magistrate had no reason or occasion to exercise his discretion to decide whether the petitioner was evading his arrest or not. In such a situation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- [(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.] 47. Search of place entered by person sought to be arrested.-(1) If any person acting under warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he is to attend before the Court. (3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court. 72. Warrants to whom directed.-(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same. (2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them. 73. Warrant may be directed to any person.- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any 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 enters on, any land or other property under his charge. (3) When the person against whom such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, or in addition to, summons.-A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest- (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 89. Arrest on breach of bond for appearance.-When any person who is bound by any bond taken under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. 8. A bare perusal of the above said provisions makes it clear that under these provisions of Cr.P.C, a police officer has almost omnipresent power to arrest. He can arrest a person even on having a suspicion that such person has committed a cognizable offence. Although in certain circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice officer, qua investigation of a crime. Although certain provisions in this Chapter envisage intervention by a Magistrate, but all these provisions are envisaged only qua the protection to the alleged accused or qua ensuring fairness in procedure being adopted by the police during investigation. Even this chapter does not envisage the Magistrate or the court as collaborator in ensuring the arrest of the alleged accused or as part of law and order machinery, to be used by the police at will. In this Chapter there is no provision for issuing warrants of arrest by a Magistrate. At the stage of investigation, where the court has not even taken cognizance of an offence, the role of Magistrate is envisaged only as an arbitrator for individual's liberty and not as routine part of investigating machinery, to be used by police indiscriminately. Therefore, Section 167 Cr.P.C. requires that after arrest if investigation is not conducted within 24 hours then the person shall be produced before the Magistrate. Even the Magistrate is prohibited from permitting police custody for more than 15 days in all. Even for authorizing custody, other than the police custody, beyond 15 days, the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of routine even qua the subjects of the warrant of arrest. This Section is in the nature of general and all inclusive powers of courts in a criminal trial; to ensure smooth running of trial. Under this Section the Magistrate can issue warrants of arrest against a person:- (a) Who is an escaped convict (b) Proclaimed offender (c) Person accused of 'non-bailable' offence and is 'evading arrest'. Hence this Section envisages three specific categories of person against whom a Magistrate can issue warrant of arrest. First two categories mentioned at (a) and (b) above, evidently, relate to situation where the court has already taken cognizance of offence or has already convicted a person. The third category mentioned as (c) also does not contemplate a person whom the police wanted to arrest during the investigation. The category of persons whom the police can arrest without warrant during investigation and the category (c) envisaged under Section 73 above, are not co-extensive or the same thing. The police could arrest any person whom it suspects to be involved in any 'cognizable' offence. Whereas the category (c) above is relating to only those offences which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 173 the police cannot get a warrant of arrest against a person, without any specific reason, and therefore a person can not be declared as a proclaimed person or offender in routine by following procedure under Section 82 of Cr.P.C; only because despite having power to arrest an accused the police had not succeeded in arresting such a person or might not have chosen to arrest such a person. 12. Accordingly, having heard learned counsel for the parties and having perused the file, this court finds substance in the argument of learned counsel for the petitioner. As discussed above, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical 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. Hence, as observed above, 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. Needless to say, at the cost of repetition; that under the provisions of Cr.P.C. itself, the police have power to arrest a person without warrant even by following such a person at any place in India. Therefore, it is clear that only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. Accordingly, 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. 18. However, this shall not preclude the police or the Magistrate from proceeding further in the matter, in accordance with law. 19. Let a copy of this order be sent to all the Magistrates and the Courts exercising criminal jurisdiction in the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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