IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. W.J.C. No.264 of 2011
Rashmi Jyoti & Ors
Versus
The State Of Bihar & Ors
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with
Cr. W.J.C. No.265 of 2011
Sati Devi And Ors.
Versus
The State Of Bihar & Ors
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with
Cr. W.J.C. No.275 of 2011
Dr. Kumkum Sinha & Ors.
Versus
The State Of Bihar & Anr.
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with
Cr. W.J.C. No.285 of 2011
Kalyan Rai @ Ram Kalyan Rai & Ors.
Versus
The State Of Bihar & Ors
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with
Cr. W.J.C. No.286 of 2011
Prem Kumar Singh
Versus
The State Of Bihar & Ors
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with
Cr. W.J.C. No.296 of 2011
Rama Shankar Prasad Singh & Anr.
Versus
The State Of Bihar & Ors
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with
Cr. W.J.C. No.310 of 2011
Chandra Prabha Devi & Ors.
Versus
The State Of Bihar & Ors
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2
with
Cr. W.J.C. No.349 of 2011
Smt. Ramkali Devi And Anr.
Versus
The State Of Bihar & Anr.
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FOR THE PETITIONERS: Mr. Birendra Kumar Sinha, Sr. Advocate
Mr. Shakeel Ahmad Khan, Sr. Advocate
Mr. Ashok Kumar Jha
Mr. Indrajeet Bhushan
Mr. Manish Kumar
Mr. Krishna Ranjan
Mr. Kumar Kaushik
Mr. Ashar Mustafa
Mr. Praveen Kumar
Mr. Harish Kumar
Mr. Pushpendra Kumar Singh
Mr. Omkar Kumar
Mr. (Dr.) Bidhu Ranjan
Mr. Binod Kumar, Advocates
FOR THE INTERVENOR : Mr. Ramakant Sharma, Sr. Advocate
Mr. Narendra Kumar, Advocate
FOR THE STATE: Mr. Amarnath Deo, S.C. XXVI
Smt. Nilu Agrawal, G. P. VI
Mr. Rishi Raj Sinha, G.P. XXIX
Mr. Manikant Mishra, G.P. XXV
Mr. N.K. Singh, G.P. XXVI
Mr. Krishna Murari Prasad, AC to GA VI
Mr. Shyameshwar Kumar Singh, AC to GP XII
Mr. Yashwant Kumar Chaman, AC to SC XXV
Mr. Lalan Kumar, AC to GP XXVI
Mr. Kinkar Kumar, AC to GP 25
Mr. Rajeev Shekhar
Mr. Gopal Krishna
Mr. Rakesh Kumar, Advocates
********
PRESENT
HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA
S.K.SINHA,J.
In the above batch of writ applications the
challenge is to a common order dated 23rd February,
2011 of Chief Judicial Magistrate, Sitamarhi issuing
non-bailable warrant of arrest against the accused
3
persons including petitioners on the requisition of the
Investigating Officer of the Sitamarhi Police Station Case
No. 595 of 2010, registered for the alleged offences
under sections 406, 409, 420, 467, 468 & 471 of the
Indian Penal code and sections 63, 64 & 68 of the Copy
Rights Act.
2. Since facts in all the above writ application
are more or less similar, as such, for the sake of
convenience the facts of Cr. W.J.C. No. 275 of 2011 (Dr.
Kumkum Sinha & Ors Vs. The State of Bihar) are
referred below wherever necessary.
3. The aforesaid order dated 23.02.2011 is
assailed inter-alia on the following grounds:
(I) Warrant for arrest could not be issued
mechanically as also without application of
judicial mind and unless any of the three pre-
conditions enumerated in sub-section (1) of
section 73 of the Code of Criminal Procedure
(hereinafter referred to as the „Code’) are
4
available.
(II) The warrant of arrest could not be issued in aid
of investigation.
4. The state has filed counter affidavit and
opposes the writ application inter-alia on the following
grounds:
(I) The writ application assailing the impugned
order is not maintainable ignoring the statutory
provisions under the Code especially in view of
involvement of serious disputed questions of
facts and also in the circumstances leading to
the lodging of the first information report in
question.
(II) Investigation of a criminal case involves taking
different measures including the arrest and also
discovery of relevant facts/materials for
collection of evidence to find out the truthfulness
of the allegations. The Investigating Officer
during investigation is entitled in law to adopt
5
such measures including arrest as per necessity.
(III) The impugned order has been passed
considering the facts/materials including memo
of evidence against each of the persons including
the petitioners in the requisition submitted by
the police for issuance of warrant of arrest.
5. The case of the State is that the requisition
for issuance of warrant of arrest necessitated for the
reason that the petitioners are the elected public
representatives being Mukhiyas of different Panchayats
all over the district of Sitamarhi against whom
investigation needs to be done in depth without delay
and as such decision to arrest called for more care and
caution coupled with the fact that pursuant to the
notice issued by the investigating officer they did not co-
operate fully since they avoided to produce the relevant
documents/materials with respect to the purchase of
solar lights in question involving misappropriation of
huge public money. Therefore, taking into consideration
6
the facts and circumstances, in the opinion of the
investigating officer, it was proper to take all measures
for the discovery of the relevant materials/documents
including the arrest which the Investigating Officer was
entitled in the light of the provisions of sub-section (1) of
section 157 of the Code.
6. The prosecution case, in short, is that on
30.10.2010 the investigating officer of the present case
received confidential information that one Ashok Kumar
son of Sri Sagar Sharma, from whose house illegal arms
were recovered, used to supply spurious solar lights
with the help of one Dipendra Mishra. When the said
Dipendra Mishra was questioned, he informed that he
along with Ashok Kumar used to supply spurious solar
lights for the past 3-4 years to various gram
panchayats. They did not have any VAT registration.
Ashok Kumar had got them registered as ‘Shiva
Enterprise”. They procured spurious solar lights from
one Magadh Solar Light, Chiraiyatar, Patna. The
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spurious solar lights used to cost lesser and the profit
thus made was distributed between the Mukhiya,
Panchayat Secretary and other officers. By such spurious
supplies which was rampant in which crores of public money
was misappropriated by committing the alleged offences.
7. Based on the above information, the police
searched the house of Ashok Kumar and seized various
documents and on the basis of those documents Ashok
Kumar, Dipendra Mishra and other Mukhiyas of
different Panchayats in the district of Sitamarhi were
made accused in the present case.
8. The common submissions on behalf of the
petitioners that the course adopted by the Investigating
Officer for arresting all the accused persons who were
the Mukhiyas of their concerned Gram Panchayats, by
seeking warrant of arrest against them without
considering the necessity and justification for such
recourse is not permissible in law. It is further
submitted that they remained co-operative all along to
8
the Investigating Officer as and when required by
furnishing the necessary information/relevant
documents in their possession. The warrant of arrest
was actuated with malice to prevent them from
contesting the ensuing Panchayat Election for Mukhiya,
the notification of which was already published.
9. Besides assailing the action of the Investigating
Officer the petitioners submitted that the learned Chief
Judicial Magistrate while issuing non-bailable warrant
of arrest also committed serious error of law by not
considering the conditions precedent for issuing such
warrant of arrest as embodied in sub-section (1) of
Section 73 of the Code which requires in law that
warrant of arrest can be issued only if either of the
three pre-requisite conditions are fulfilled i.e. the person
against whom the warrant of arrest is being issued
either he should be escaped convict, proclaimed
offender or of any person who is accused of a non-
bailable offence and is evading arrest. As such,
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issuance of warrant of arrest being contrary to law
deserves to be quashed.
10. On the other hand submission on behalf of
the State is to the effect that these petitioners were
seriously involved in commission of the alleged offence
while making the payment for supply of spurious solar
lights knowingly for their ulterior pecuniary gain
causing huge loss to the public ex-chequer as the solar
lights in question were of a duplicate material whereas
the payments were made for the original having a wide
difference of price.
11. Mr. Amarnath Deo, learned Standing
Counsel No. XXVI leading the argument on behalf of
the State submits that the petitioners were not co-
operating in the investigation of the case by concealing
the relevant information/ documents, and as such, in
the opinion of the Investigating Officer their arrest was
felt necessary, however, since large number of persons
including the petitioners being public representatives
10
were required to be arrested, therefore, obtaining the
warrant of arrest was the proper course. Accordingly,
the requisition for issuance of warrant of arrest was
filed in the Court stating all the relevant details with
memo of evidence against all the accused persons for
consideration of the Court before issuance of the
warrant of arrest.
12. It was further submitted that on perusal of
the impugned order it would appear that the learned
Chief Judicial Magistrate upon due consideration to the
requisition of the Investigating Officer passed the order
for issuance of warrant of arrest. It is submitted that
the same is legal, valid and justified in law, as such, all
the writ applications deserves to be dismissed.
13. In reply, learned counsel for the petitioners
drawn the attention of the Court to the provisions of
Section 41(a)(b)(i) and Section 55 of the Code for the
proposition that the Investigating Officer instead of
seeking warrant of arrest could have sent the
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requisition for arrest to another police officer, and as
such, the submission of the State that it was necessary
to seek the warrant of arrest is not justified in law.
14. Before considering the rival submissions of
the parties, the relevant provisions of Sections 41A, 72,
73(1), 74 & 157(1) of the Code are quoted below for
ready reference:
Section 41A
(1) The police officer shall, in all cases where the
arrest of a person is not required under the
provisions of sub-section (1) of section 41, issue
a notice directing the person 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, to appear before
him or at such other place as may be specified
in the notice.
(2) Where such a notice is issued to any person,
it shall be the duty of that person to comply
with the terms of the notice.
(3) Where such a notice is issued to any person,
it shall be the duty of that person to comply
with the terms of the notice.
(4) Where such person, at any time, fails to
comply with the terms of the notice or is
unwilling to identify himself, the police officer
12
may, subject to such orders as may have been
passed by a competent Court in this behalf,
arrest him for the offence mentioned in the
notice.
Section 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 officer or
persons than one, it may be executed by all, or
by any one or more of them.
Sub-Section (1) of Section 73
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.
Section 74
Warrant directed to police officer – A warrant
directed to any police officer may also be
executed by any other police officer whose name
is endorsed upon the warrant by the officer to
whom it is directed or endorsed.
Extract of Sub-Section (1) of Section 157
If, from information received or otherwise, an
officer in charge of a police station has reason to
suspect the commission of an offence which he
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is empowered under section 156 to investigate,
he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of
such offence upon a police report and shall
proceed in person, or shall depute one of his
subordinate officers not being below such rank
as the State Government may, by general or
special order prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to
take measures for the discovery and arrest of
the offender.
15. On perusal of the aforesaid statutory
provisions it would appear that a person, who is an
accused of a cognizable offence, could be arrested by
the police either on its own or under the orders of the
Court on basis of the warrant of arrest.
16. The pre-dominant consideration for arrest
under either of the mode is the necessity of arrest
either for appearance in the Court or required in course
of investigation.
17. In this connection, it would appear that on
lodging of the first information report with respect to
the a cognizable offence in terms of Section 154 of the
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Code the officer in charge of such police station if he
reasonably suspects the commission of the alleged
offence disclosed in the information received shall
proceed in person or depute any eligible sub-ordinate
officer to proceed to the spot to investigate the facts
and circumstances of the case and if necessary, to take
such measures for the discovery and arrest of the
offender in terms of the provisions of section 157 (1) of
the Code.
18. From the above, it is manifest that the
investigating officer is empowered under the aforesaid
statutory provision to take all measures for discovery
and arrest of the offender in course of the investigation
of the case, if necessary. An accused has no say and is
not entitled to choose as to who should be the
investigating agency and measures to be adopted to
investigate the case permitted under law. Reference
may be made to the decision of the Apex Court in the
case of Central Bureau of Investigation & Anr. Vs.
15
Rajesh Gandhi & Anr., as reported in A.I.R. 1997
Supreme Court 93 (Paragraph 8). In the case in hand,
the investigating officer stating the reasons for seeking
the warrant of arrest made the requisition dated
18.02.2011 with memo of evidence against all
separately (Annexure-4) as referred to in the foregoing
paragraphs before the learned Chief Judicial
Magistrate, Sitamarhi whereupon on consideration of
the above on being satisfied, directed for issuance of
the non-bailable warrant of arrest vide order dated
23.02.2011 i.e. the impugned order.
19. There is another controversy between the
parties. The stand of the petitioners are that the
warrant of arrest has been issued in terms of the
provisions of sub section (1) of Section 73 of the Code
whereas the stand of the State that the warrant in
question is purported to have been issued in terms of
sub-section (1) of Section 72 read with Section 74 of the
Code. Since the warrant under Sub-section (1) of
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Section 73 of the code provides for issuance of warrant
to a private person where no police officer is
immediately available for the execution of the warrant
of arrest.
20. In the opinion of the Court, the very
purpose of issuance of warrant of arrest is to secure the
appearance of the accused persons in the Court as also
to effect their arrest if required during investigation.
Reference may be made to the decision in the case of
State Through CBI Versus Dawood Ibrahim Kaskar and
others as reported in 1997 Supreme Court Cases (Cri)
636 (Paragraph 22) which is quoted below:
“Another factor which clearly indicates
that Section 73 of the Code gives a power
to the Magistrate to issue warrant of
arrest and that too during investigation is
evident from the provisions of Part C of
Chapter VI of the Code, which we have
earlier adverted to. Needless to say the
provisions of proclamation and
attachment as envisaged therein is to
compel the appearance of a person who is
evading arrest. Now, the power of issuing
17a proclamation under Section 82 (quoted
earlier) can be exercised by a Court only
in respect of a person “against whom a
warrant has been issued by it”. In other
words, unless 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 in spite 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.]Therefore, in case the petitioners have come to know
that they are required by the investigating officer in
course of the investigation, they are required in law to
appear before the police officer investigating the case
even without receiving any notice in this regard from
the investigating officer. However, in case they
apprehend their arrest it is always open to the person
apprehending his arrest to apply for such bail in terms
of the provisions of Section 438(1) of the Code, but in
18no case, petitioners could have avoided the
investigation. It has been stated in the counter affidavit
on behalf of the State to the effect that the petitioners
were not co-operating fully, i.e. either they were
withholding information or withholding the relevant
documents to unreveal the truth.
21. Notwithstanding the above and without going
into detail, considering the submissions of the parties,
it is just and proper that petitioners should co-operate
in the investigation. It is open to them to apply for bail
as provided under law and in case the petitioners either
get pre-arrest bail or on surrender, the warrant of
arrest and other processes issued against them are to
be recalled. Reference may be made to a decision of the
Apex Court in the case of Vimla Ben versus Vatsola
Ben, as reported in (2008)4 SCC, 649 (paragraphs 32 &
33). Learned counsel for the petitioners has relied upon
a decision of Apex Court in the case of Inder Goswami
Versus State, as reported in 2008 (1) P.L.J.R., 82 (SC)
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for the proposition that the warrant of arrest being a
serious matter could not be issued mechanically
without application of mind as also in absence of any
relevant material justifying the issuance of warrant of
arrest. Here it is not a case of issuance of warrant of
arrest mechanically, as on perusal of the impugned
order it would appear that the warrant of arrest were
issued on the consideration of the requisition
submitted by the investigating officer enclosing the
memo of evidence available against all the accused
persons, and the learned chief Judicial Magistrate upon
considering all the relevant materials on the record
directed for issuance of warrant of arrest, and as such,
it cannot be said that the same was issued
mechanically. The impugned order as such cannot be
faulted in law. That apart the law is well settled that
the defect, if any, however serious has no direct bearing
on the competence or the procedure relating to the
cognizance or trial as held by the Apex Court in the
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case of Paramjit Singh @ Mithu Singh Versus State of
Punjab, reported in AIR 2008 Supreme Court 441
(Paragraph 13) extract of which is quoted below :
“it is well settled that even a defect, if any,
found in investigation, however serious
has no direct bearing on the competence
or the procedure relating to the
cognizance or the trial. A defect or
procedural irregularity, if any, in
investigation itself cannot vitiate and
nullify the trial based on such erroneous
investigation”
22. In view of the above considerations and
discussions, I do not find any merit in all the writ
applications. Accordingly, all the above writ
applications fail and as such are dismissed. The
interim order dated 11.03.2011 stands vacated.
( Shailesh Kumar Sinha, J.)
Patna High Court
The 25th of August, 2011
Manish/A.F.R.