The main legal point established in the judgment is that the issuance of a warrant of arrest during the investigation must be based on the fulfillment of the conditions mentioned in Section 73(1) of the Code of Criminal Procedure and cannot be passed in a mechanical manner without the application of judicial mind.

Shailesh Kumar Sinha, J.

1. Heard learned Counsel for the Petitioners and the State as also Mr. Bhibhuti Prasad Pandey, Senior Advocate appearing as Amicus Curiae.

2. The Petitioners pray for issuance of a writ in the nature of certiorari quashing the impugned order dated 18th November, 2010 as contained in Annexure- 1 in Special Case No. 62 of 2009 arising out of Vigilance Police Station Case No. 86 of 2009 pending in the court of Special Judge - I, Patna whereby warrant of arrest has been issued during investigation of the above case. Petitioners assail the impugned order on the ground that the same has been passed in violation of the provisions of Section 73(1) of the Code of Criminal Procedure (hereinafter referred to as the "Code") on the written requisition of the Investigating Officer of the said case as mentioned in the impugned order.

3. The contention of the Petitioners is that the warrant of arrest in law could not have been issued during the investigation of the case. Besides the above, it was also submitted that warrant of arrest, more so non-bailable warrant of arrest, could not be issued in absence of valid justification and that too without proper scrutiny of the facts and circumstances of the case justifying such issuance of warrant of arrest. In its support, reliance is placed upon a decision of the Apex Court in the case of Indar Mohan Goswami and Am. v. State of Uttaranchal and Ors. reported in 2008 (1) PLJR 1982 (SC) as also decision of this court in the case of Nalini Kant Agarwal v. State of Bihar and Ors. reported in 2003 (1) PLJR 350 and also in the case of Krishna Murari Yadav v. State of Bihar reported in 2005 (3) PLJR 746.

4. Learned Counsel appearing on behalf of the State opposes the prayer of the Petitioners and supports the impugned order.

5. The short facts relevant to the case of the Petitioners are to the effect that they have been made Accused during the investigation of the aforesaid Vigilance P.S Case No. 86 of 2009, which gave rise to Special Case No. 62 of 2009 for the offences under Sections 13(2) read with Section 13(1)(d)(c) of the Prevention of Corruption Act, 1988. The FIR named Accused Sanjay Kumar, is the husband of Petitioners No. 1 and son in law of Petitioner No. 2. The allegation in sub and substance against the FIR named Accused of acquiring movable and immovable properties including cash of Rs. 75, 53,981 during his service while acting as Excise Superintendent. The allegations against the Petitioners appears to be of helping the FIR named Accused Sanjay Kumar in concealing his illegal income as indicated in the Letter No. 4645 dated 16th November, 2010, submitted by Senior Deputy Superintendent of Police cum Investigating Officer Vigilance of the aforesaid case which is the basis of the impugned order for issuing warrant of arrest.

6. Mr. Bhibhuti Prasad Pandey, learned Senior Counsel appearing as Amicus Curiae submits that on perusal of the provisions of Sections 73, 82 and 83 of the Code, it would appear that even though the warrant of arrest could be issued during the investigation, no such order can be passed in a mechanical manner without application of judicial mind and in the absence of fulfillment of the conditions mentioned in Sub- section -(1) of Section 73 of the Code. Mr. Pandey in support of his submission relied upon a decision of the Supreme Court in the case of State through CBI v. Dawed Ibrahim Keshkar and Ors, as reported in AIR 1997 SC 2494.

7. The point for consideration in the case is regarding the powers of the court to issue a warrant of arrest as also the conditions requisites for issuance of such warrant of arrest. Before considering the matter in issue, it would be fruitful to quote the relevant provisions of Chapter VI and XII of the Code.

CHAPTER VI Section 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