JUDGMENT :

Harsha Devani, J.

Rule. Mr. R.C. Kodekar, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent in both the petitions.

2. Having regard to the facts of the case and with the consent of the learned counsel for the respective parties, the matters were taken up for final hearing. Since the reliefs prayed for in both the petitions are identical and the facts are also common, both the petitions were taken up for hearing together and are disposed of by this common judgment.

3. Both these petitions are directed against the order dated 28.10.2013 passed by the learned Chief Judicial Magistrate, Surat below the application dated 19.10.2013 submitted by the Assistant Commissioner of Police, “G” Division, Surat city, whereby warrant under section 70 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) has been ordered to be issued against the petitioners herein.

4. A first information being Jahangirpura Police Station, Surat I - C.R. No.31 of 2013 came to be lodged on 06.10.2013 against the petitioners herein alleging commission of the offences punishable under sections 376(2) (k) and (f), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2) and 120-B of the Indian Penal Code. It appears that immediately thereafter, on 9th October, 2013, the petitioner in Special Criminal Application No.3366 of 2013 (hereinafter referred to as “the first petitioner”) filed an application for quashing the said first information report before this court being Special Criminal Application No.3101 of 2013. The said petition came to be adjourned from time to time and in view of some deficiency in the said petition, the same came to be withdrawn with liberty to file a fresh petition. It appears that the first petitioner also filed an application under section 438 of the Code before the Sessions Court, at Surat being Criminal Miscellaneous Application No. 2595 of 2013 on 11.10.2013. In view of some objection taken to the affirmation of the said application, the same came to be withdrawn and subsequently, a fresh application came to be filed being Criminal Miscellaneous Application No. 2728 of 2013. According to the first petitioner, soon after the first information report came to be filed, he had been prompt and vigilant enough to have availed of all legal remedies available to him under law, which he had been pursuing right from 10.10.2013. In the meanwhile, on 21.10.2013, the Assistant Commissioner of Police, “G” Division, Surat City, filed an application before the learned Chief Judicial Magistrate, Surat, for issuance of a warrant in accordance with section 70 of the Code against the petitioner and other co-accused.

By the impugned order dated 28.10.2013, the learned Chief Judicial Magistrate allowed the said application, which has given rise to the present petitions.

5. Mr. N.D. Nanavaty, Senior Advocate, learned counsel for the petitioners in each of the petitions drew the attention of the court to the facts of the case, to submit that the first information report came to be lodged on 06.10.2013, a quashing petition came to be preferred on 09.10.2013, and on 11.10.2013, an application for anticipatory bail came to be submitted. However, in the meanwhile, within a short time, in great haste, the investigating agency filed an application for issuance of warrant under section 73 of the Code on 19.10.2013. It was argued that if such action on the party of the investigating agency is permitted, whatever limited rights the accused has under section 438 of the Code would be frustrated. It was pointed out that on 28.10.2013, the application for anticipatory bail came to be withdrawn on account of certain deficiencies in the application and thereafter, a fresh application came to be filed on 30.10.2013.

On 18.11.2013, a quashing petition came to be withdrawn, whereas the proclamation under section 82 of the Code came to be issued on 11.11.2013 on the basis of a warrant issued pursuant to the