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GUJARAT HIGH COURT
J.B. Pardiwala, J.
Navalsinh Hemubha Parmar —Applicant
versus
State of Gujarat —Respondent
Criminal Misc. Application (for quashing & set aside FIR/Order) No.27331 of 2017
Decided on 16.11.2017
For the Applicant No.1:Mr. BM Mangukiya and Ms. Bela A Prajapati, Advocates
For the Respondent No.1: Mr. Mitesh Amin, LD. Public Prosecutor Assisted by Mr. Devnani, APP
IMPORTANT POINT
Since warrant is and can be issued for appearance before the Court only and not before the police and since authorization for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, it cannot be said that the warrant of arrest under section 73 could be issued by the courts solely for the production of the accused before the police in aid of investigation.
Headnote:(i) Criminal Procedure Code, 1973—Section 73—Order passed by Magistrate for issuance of Non-bailable warrants on requisition filed by Investigating Officer in a case under sections 307, 323, 504, 506, 147, 148/149 IPC and under sections 25 and 27 of Arms Act—Earlier application for grant of anticipatory bail filed by applicant was rejected by High Court—Application questioning issuance of Non-bailable warrants on plea that non-bailable warrant could not be issued by Court to facilitate Investigating Officer to secure presence of accused before police in the aid of investigation—Court could issue a warrant in exercise of power to apprehended a person who was accused of non-bailable offence and was evading arrest—In view of provisions of section 167 CrPC and sections 82 and 83 CrPC, it could not be said that purpose of warrant of arrest was for production of applicant before police in aid of investigation. (Paras 19 to 21)
(ii) Criminal Procedure Code, 1973—Section 73—Order for issuance of warrant of arrest—Should not be passed casually but only after taking into consideration the totality of circumstances. (Paras 23 to 25)
Result: Application dismissed.
JUDGMENT (ORAL)
J.B. Pardiwala, J.—By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused, has prayed for the following reliefs;
“(A) Be pleased to quash the non-bailable warrant dated 11.10.2017 issued by the Judicial Magistrate, First Class, Chuda, in connection with the FIR recorded as C.R. No.I-18 of 2016.
(B) Pending hearing and final disposal of this petition, be pleased to stay the implementation, operation and execution of the non-bailable warrant dated 11.10.2017 issued by the Judicial Magistrate, First Class, Chuda, in connection with the FIR recroded as C.R. No.I-18 of 2016;
(C) Be pleased to pass such other and further orders as may be deemed fit and proper.”
2. On 17th May, 2016, a first information report came to be lodged with the Chuda Police Station, District: Surendranagar for the offence punishable under sections 307, 323, 504, 506(2), 147, 148 and 149 of the Indian Penal Code and sections 25(1)(1-B)((A) and 27 of the Arms Act read section 135 of the G.P. Act bearing C.R.No.I-18 of 2016. The applicant herein is one of the accused persons named in the first information report. It appears that apprehending arrest at the hands of the police, he prayed for anticipatory bail before this Court by filing the Criminal Misc. Application No.33585 of 2016. A Co-ordinate Bench of this Court, vide order dated 3rd March, 2017, rejected the anticipatory bail application. I may quote the relevant observations made by the Co-ordinate Bench while rejecting the anticipatory bail application.
“4. Learned advocate Mr. B.M. Mangukiya for the applicant with his usual vociferousness contended that the F.I.R. bearing C.R. No.I-18 of 2016 against the applicant was in the nature of a counter-blast to the F.I.R. being C.R. No.I-17 of 2016 lodged on the previous day. He submitted that therefore the allegations in the F.I.R. in questions are motivated looking to the fact that the same was filed as a cross F.I.R. He submitted that the allegations were not tenable on their face value and they did not inspire any credibility. He next submitted that the investigating agency was somehow after the applicant. In order to try seek support for this submission, he relied on the aspect of arrest of the applicant, which, according to him, was a paper creation and now sought to be used as a preliminary ground to object the prayer for anticipatory bail. He further contended on the basis of orders of anticipatory bail granted to other accused by this Court, that the present applicant deserved to be treated at par.
4.1 Learned advocate for the applicant relied on decision of the Supreme Court in Ravindra Saxena v. State of Rajasthan [(2010) 1 SCC 684] to submit that Section 438 is a salutatory provision which is meant to protect the personal liberty of an individual and to prevent deprivation of such liberty. He submitted that the Court would have to exercise discretion judiciously jettisoning the technicalities.
4.2 On the other hand, learned Public Prosecutor Mr.Mitesh Amin assisted by learned Additional Public Prosecutor Mr.Rutvij Oza, joined by learned advocate Mr.Bhargav Bhatt who appeared for the private complainant, harped on the preliminary aspect to submit that the investigating officer who was investigating pursuant to the instant F.I.R. had already arrested the applicant and after courting arrest, the applicant had managed to flee from the custody of the police. By highlighting the facts related to the arrest and the consequential steps, the details of which are placed on record by filing the affidavits, they seriously submitted that the present application was not competent as no anticipatory bail could be claimed once the applicant was arrested, but then fled.
4.2.1 The respondents-the investigating officer as well as the private complainant both, by filing their respective replies put forth the facts of the aspect that the applicant was arrested and escaped thereafter. It was submitted
