Warrants and police custody during investigation remain available under CrPC for absconding accused and later-arrested suspects.

A Magistrate may issue a warrant under Section 73 CrPC during investigation to secure the arrest of an accused of a non-bailable offence who is evading arrest; the power is not confined to the post-cognizance stage. Where further investigation continues after cognizance, a person arrested for that investigation may be remanded to police custody under Section 167, because Section 309(2) applies only to an accused already before the court and does not bar Section 167 in that situation. The impugned order was therefore unsustainable.

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Issues: (i) Whether a Magistrate can issue a warrant under Section 73 of the Code of Criminal Procedure, 1973 during investigation for arrest of a person accused of a non-bailable offence and evading arrest. (ii) Whether, after cognizance has been taken, a person arrested during further investigation can be remanded to police custody under Section 167 of the Code of Criminal Procedure, 1973 notwithstanding Section 309(2) of the Code.

Issue (i): Whether a Magistrate can issue a warrant under Section 73 of the Code of Criminal Procedure, 1973 during investigation for arrest of a person accused of a non-bailable offence and evading arrest.

Analysis: Section 73 is a general power enabling the specified Magistrates to direct warrants for arrest of an escaped convict, proclaimed offender, or a person accused of a non-bailable offence and evading arrest. The scheme of Chapter VI, including Sections 82 and 90, shows that issuance of warrant is not confined to the post-cognizance stage under Section 204. The power can operate during investigation where the Investigating Agency seeks to secure the presence of an absconding accused.

Conclusion: Yes. A Magistrate can issue a warrant under Section 73 during investigation in the circumstances contemplated by that provision.

Issue (ii): Whether, after cognizance has been taken, a person arrested during further investigation can be remanded to police custody under Section 167 of the Code of Criminal Procedure, 1973 notwithstanding Section 309(2) of the Code.

Analysis: Section 173(8) permits further investigation even after a report has been forwarded and cognizance taken. Section 309(2) governs remand after cognizance for an accused already before the Court, but does not control a person who is subsequently arrested in the course of further investigation. Such a person falls within the ambit of Section 167, and the Court may authorise police custody subject to the statutory requirements and limitations. The bar under Section 309(2) does not exclude the operation of Section 167 in that situation.

Conclusion: Yes. A person later arrested during further investigation may be remanded to police custody under Section 167, and Section 309(2) does not take away that power.

Final Conclusion: The impugned order was unsustainable, and the applications seeking warrants and consequential steps were required to be considered in accordance with law on the basis that Section 73 can be invoked during investigation and Section 167 remains available for a person subsequently arrested in further investigation.

Ratio Decidendi: A Magistrate may issue a warrant under Section 73 during investigation to secure an accused evading arrest, and a person subsequently arrested in further investigation can be remanded under Section 167 notwithstanding Section 309(2), because post-cognizance remand under Section 309(2) applies only to an accused already before the Court.

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