The court clarified the power of the Magistrate to issue NBW during the investigation and the purpose of the NBW, emphasizing that the accused were to appear before the court, not before the investigating officer.

DINESH KUMAR SINGH, J.

1. Heard the learned counsel for the applicant Ms. Divya Ojha, Advocate holding brief Shri Ajay Sengar, Sri Sudhir Kumar Pathak, learned AGA and perused the record.

2. This application under sections 482 of the Criminal Procedure Code has been moved seeking quashing of order dated 05/03/2015 passed by learned chief Judicial Magistrate, Orai, District Jalaun on in case crime No. 0013 of 2018 under sections 73 of the Criminal Procedure Code, police station, Jalaun, whereby NBW has been issued against the applicant.

3. As per prosecution version the applicant is a farmer having no connection with any illegal activities. One Madho Singh has lodged an F.I.R. dated 24/01/2018 alleging that on 23/1/2018 he and his brothers, Annu, Mangal Singh and Anupam were grazing animals in their field, right then, the applicant with his associates came there armed with weapons and started abusing him. On exhortation of accused Ram Sharan, all the accused started making indiscriminate firing upon the complainant side, consequently nephew of the complainant, Anupam sustained injury on his head and Sudhir alias Appu sustained injuries in his leg and both of them fell down and later on with the help of villagers they were hospitalised where Anupam succumbed to his injuries. The case was registered as Crime No. 0013 of 2018 under sections 147, 148, 149, 307, 302, 504, and 506 IPC at PS Kotwali – Kalpi.

4. The contention of the learned counsel for the applicant is that the aforesaid offences were already cognizable and non-bailable, hence soon after the lodging of F.I.R., the investigating officer had arrested three accused without obtaining any warrants from court and proceeded with further investigation. Thereafter on 28/02/2018 the investigating officer moved an application before the learned Chief Judicial Magistrate, Orai seeking issuance of NBW under sections 73 of the Criminal Procedure Code against the accused applicant, whereon without any speaking order, the said Magistrate issued NBW against the applicant vide order dated 05/03/2018 which is impugned here. He further argued that the investigating officer had not submitted the charge- sheet as yet nor final report under sections 173 (2) Cr.P.C. before the learned CJM and the investigation being still pending, therefore the learned Magistrate had no jurisdiction to issue NBW against the applicant. The applicant was named in the F.I.R., however there was no allegation against him as he had not made any fire nor did he commit murder of the deceased and only with a view to blackmailing him he has been made accused in the F.I.R. The learned Magistrate has power to issue warrant under sections 73 of the Criminal Procedure Code during investigation also but such power can be exercised for appearance in the court only and not for the aid of police in investigation. Therefore the impugned order deserves to be quashed.

5. The learned counsel for the applicant has placed reliance upon the law laid down in State through CBI vs. Dawood Ibrahim Kaskar and others, (2000) 10 SCC 438 to prove the point that no NBW can be issued during investigation of a criminal case for production of the accused before the police in aid of investigation.

6. Perused the impugned order. The Chief Judicial Magistrate, Jalaun at Orai has passed an order in Case Crime No. 13/80 under sections 147, 148, 149, 302, 377, 504 and 506 IPC PS, Kalpi, District Jalaun on 05/03/2013 that the investigating officer of the aforesaid case, Sanjay Kumar Gupta had moved an application in the afore-mentioned case crime number praying that NBW be issued against accused persons namely, Ram Sharan, Ram Swaroop, Kripa Ram, Babu Singh, Sundar Kotedar, Harnam, Jaigopal, Pradhan Akilesh, Karan (applicant), Lal Singh and Santosh. As per the report none of these accused was detained in jail and according to the report of the court clerk, no charge sheet had been submitted against them nor any stay order had been received