JUDGMENT :

Heard learned counsel for the petitioners and learned counsel for the State.

2. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioners for quashing the orders dated 27.03.2019 and 15.07.2019 passed by the learned Chief Judicial Magistrate, Saran whereby on requisitions dated 15.03.2019 and 28.06.2019 presented by the Sub-Inspector of Police, Madhaura Police Station, Saran, warrant of arrest and proclamation order respectively have been issued against the petitioners in connection with Madhaura P.S. Case No.570 of 2018 registered under Section 302 read with 34 of the Indian Penal Code (for short ‘IPC’).

3. Learned counsel appearing for the petitioners submitted that the orders impugned whereby warrant of arrest and proclamation order have been issued are wholly illegal, unjust and unsustainable in the eye of law. He has contended that though none of the preconditions for exercising powers under Section 73 of the Code of Criminal Procedure (for short ‘CrPC’) were fulfilled, the learned Chief Judicial Magistrate has mechanically issued warrant of arrest vide order dated 15.07.2019. Also, by a non-speaking order a written proclamation requiring the petitioners to appear under Section 82 of the CrPC was issued by the learned Chief Judicial Magistrate. According to him, there was ‘no reason to believe’ that the petitioners had absconded or concealed themselves. In absence of the satisfaction by the Magistrate that the petitioners had absconded or concealed themselves, he could not have granted permission for proclamation against them.

4. Per contra, learned counsel appearing for the State submitted that since the petitioners were evading arrest, there is no illegality in the order passed by the learned Chief Judicial Magistrate whereby he has issued warrant of arrest against them. He has further submitted that since the petitioners failed to appearing before the police or the court in spite of issuance of non-bailable against them, the court rightly allowed the prayer of the police for issuance of an order of proclamation against them.

5. Having heard learned counsel for the parties and perused the materials available on record, in order to examine the issues raised by the petitioner, it would be relevant to consider the ambit and scope of Section 73 of the CrPC, which is set out hereinbelow:-

“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 offencer 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.”

(emphasis added)

6. Section 73 of the CrPC is of general application and, in course of investigation, a court can issue a warrant of arrest in exercise of powers conferred thereunder. The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant of any person within his local jurisdiction under Section 73 of the CrPC.

7. Section 73(1) of the CrPC says that 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.

8. It has been pleaded that the petitioners are neither escaped convict nor proclaimed offender.

9. The requisition filed by the Sub-Inspector of Police of Madhaura Police Sta