Important Point- A person accused of an offence may be booked in manner prescribed and subject to procedure and at the same time, a fair opportunity is provided.

Rajesh H. Shukla, J.

1. The present petition is filed by the petitioner under Art. 227 read with Art. 21 of the Constitution of India for a Writ of mandamus or any other appropriate writ for the prayers as prayed for in detail in the petition, inter alia, that appropriate writ of mandamus or any other writ or order may be issued to quash the order under Sec. 70and under Sec. 82 of the Code of Criminal Procedure, 1973 in C.R. No. I-12 of 2009 registered at Dungari Police Station (orders dated 5-6-2015 and 11-5-2015). It is also prayed that further proceedings arising out of such an order passed for warrant under Sec. 70 of Cr.P.C. by the Addl. Chief Judicial Magistrate, Valsad, and also the order passed by the Chief Judicial Magistrate, Valsad for proclamation under Sec. 82 of Cr.P.C. may be stayed on the grounds stated in the petition. The facts of the case as narrated in the petition refer to the investigation in connection with the offence under Secs. 302,307, 120B of the Indian Penal Code read with Secs. 25(1)A, B, 27(1)A, B of the Arms Act, 1959 and Sec. 135 of the Bombay Police Act.

2. Heard learned Counsel Shri A.D. Shah for the petitioner. He referred to the application by the S.P., C.I.D. Crime, Gandhinagar dated 10-5-2015 and the order passed by the Addl. Judicial Magistrate, Valsad, dated 11-5-2015 for issuance of warrant under Sec. 70of Cr.P.C. it appears that in spite of this, the warrant could not be executed as stated in another application by the C.I.D. Crime, Gandhinagar, dated 5-6-2015 to the Judicial Magistrate, Valsad that the present applicant-accused is concealing or hiding himself for which an application was given for proclamation under Sec. 82 of Cr.P.C. and the same has been granted vide order dated 5-6-2015 by the 3rd Addl. Chief Judicial Magistrate, Valsad.

3. Learned Counsel Shri Shah submitted that the orders are illegal and he submitted that such an order could not be passed for production of the applicant-accused before the police in aid of investigation. He referred to the provisions of Cr.P.C. and also heavily relied upon the judgment of the Hon'ble Apex Court reported in 2000 (10) SCC 438 in the case of State through C.B.I, v. Dawood Ibrahim Kaskar. He pointedly referred to the observations in the judgment and submitted that if the complaint is investigated under Sec. 155 of Cr.P.C., then it can resort to such proceeding as is required to get an order of the competent magistrate and can exercise the power of investigation in respect of cognizable offence, but he cannot arrest without warrant, and therefore, may have to apply for the warrant. Therefore, an emphasis has been made by learned Counsel Shri Shah that there is total lack of jurisdiction or power to issue either the warrant under Sec. 70 or the proclamation under Sec. 82 of Cr.P.C. for the purpose of production of the applicant-accused in aid of the investigation. He submitted that the Court could not come in the picture for the procurement of the accused before the police or in aid of investigation at that stage. He has also referred to and relied upon the judgment of the Co-ordinate Bench (Harsha Devani, J.) in Special Criminal Application No. 3366 of 2013 with Special Criminal Application No. 3370 of 2013 dated 5-12-2013 and submitted that relying upon this judgment of the Hon'ble Apex Court, the view has been taken that such a power could not be exercised.

4. Learned Public Prosecutor Shri Mitesh Amin referred to the background of facts as well as the relevant dates and submitted that in spite of the order dated 11-5-2015 for the warrant, as the applicant had concealed himself and could not be traced for the purpose of investigation, an application under Sec. 82 dated 5-6-2015 as stated in detail was made. Therefore, by the order dated 5-6-2015, the proclamation was issued. He submitted that as the petitioner is causing delay and is absconding, the investigating agency has to resort to this provision which have been provided b