TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1815
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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, the exercise of discretion by the Magistrate stands vitiated, being in negation of law as is laid down by the Hon'ble Supreme Court in the case of State through Central Bureau of Investigation Vs. Dawood Ibrahim Kaskar, (2000) 10 SCC, 438. Still further, it is contended that since, the police had not disclosed any reason even in their application, therefore, arrest of the petitioner would be in violation of the provisions of Section 41(1)(b)(ii) of Cr.P.C. It is further submitted by the counsel that in the absence of any such reasons, the Magistrate could not have even authorized the police custody of the petitioner, in case of his arrest. Therefore, if the Magistrate co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 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 to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: [Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arch 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 authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uted 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 warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71. C.-Proclamation and attachment 82. Proclamation for person absconding.-(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 circumstances the police officer is required to record reasons for arresting a person or is required to have a satisfaction qua the necessity of arrest, however, all these requirements are intrinsic to the arresting officer. These requirements do not create any external or outside hurdle, for removal of which the assistance of a court or Magistrate may be required. Hence, if a police officer has some valid reasons to arrest a person, he has as wide powers to arrest a person without warrant, as it could have been. He has an authority of hot-pursuit as well, if the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 Magistrate is required to have reasons for that. Still further the custody cannot be extended more than 90 days or 60 days, as the case may be. 10. Even Chapter VI Cr.P.C, where courts have been conferred with the powers to issue warrant of arrest is not concerned with the investigation of a crime, as such, by the police. This chapter, as it expressly proclaims, deals with the processes to compel appearance before a 'Court'. The Court, obviously, is not concerned with the accused person, as such, unless it has taken cognizance of the offence und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egories 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 are 'non-bailable'. Obviously, 'cognizable' and 'non-bailable' are not belonging to either the same species of offences or the same stage of criminal trial or criminal procedure. There are lot many offences even in the first schedule attached to Cr.P.C. itself; which are 'cognizable' but 'bailable' and also which are 'non-cognizable' but also 'non-bailable'. Otherwise also, it is for the legislature to specify whether the offence would be cognizable or non-cognizable and, at the same time....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earned 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 the petitioner on Arnesh Kumar Vs. State of Bihar and another, [2014 ALL SCR 2542], 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 co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his 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 Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest. During investigation; even if there is some specific legal or factual obstacle or barrier, which makes the arrest without warrant impossible, and if the police intend to seek warrant of arrest from the Magistrate for such arrest, under any provision of the Cr.P.C, the police are required to specify the obstacle, which the warrant issued by the court would remove and because of which such obstacle or the barrier in way of the polic....