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1997(2) Crimes 92 (SC)
SUPREME COURT OF INDIA
M.K. Mukherjee, G. T. Nanovoti & R.N. Kirpl, JJ.
State through CBI-Appellant
versus
Dawood Ibrahim Kaskar & Ors. - Respondents
Criminal AppealNos, 157-159 of 1997
Decided on 7-1997
Held that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power there under to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation, It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on 1he prayer of the Investigating Agency he holds test identification parade, records the confession of an accused or the statement of a wit-nesses Takes of Witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magis trate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency will entertain its prayer for police custody will be at his sole discretion, which has to be judicial exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation. (Para 20)
Result: Appeals allowed. Designafed Court directed to dispose of these applications filed by CBI in accordance with law.
JUDGMENT
M.K. Mukherjee, J. -The principal question that is required to be answered in these appeals is when and under what circumstances a Court can invoke the provisions of Section 73 of the Code of Criminal Procedure, 1973 ('Code', for short). The question arises in this way.
2. on March 12, 1993 a series of bomb explosions took place in and around the city of Bombay which resulted in the death of 257 persons, injuries to 713 persons and damage to properties worth Rs. 27 crores (approximately). Over the explosions 27 criminal cases were registered and on completion of investigation a composite charge-sheet was forwarded to the Designated Court, Greater Bombay on November 4, 1993 against 198 accused persons, showing 45 of them absconders, for commission of various 'offences punishable under the Indian Penal Code the Terrorist and Disruptive Activities (prevention) Act, 1987 (TADA for short), Arms Act 1959 Explosives Substances Act, 1908 and other Acts. On that charge sheet the Designated Court took cognizance and the case registered thereon was numbered as B.B.C. (Bomb Blast Case) No.1 of 1993.
3. A few days thereafter - on November 11, 1993 to be precise - the Government of India, with the consent of the Government of Maharashtra, issued a notification entrusting further investigation in the above cases to Delhi Special Police Establishment (CBI) under the provisions of Section 5 of the 'Delhi Special Police Establishment Act, 1946. Pursuant thereto CBI registered a case being No. R.C. 1 (5)/93/S.T.F. Bombay on November 19, 1993 and took up further investigation with permission of the Designated Court.
4. In course of such investigation CEI apprehended Mohd. Salim Mira Moiuddin Shaikh @ Salim Kutta, one of the absconders mentioned in the charge-sheet, on July 24, 1995. He made a confessional statement before Shri S.K. Saikia, Deputy Inspector General of Police, CID, Al1medabad, which was recorded by him on August 18 and 19, 1995 under Section 15 of TAD A. In that confession he disclosed that the respondent Nos. 2 to 7 herein (hereinafter referred to as the 'respondents') had taken active part in the criminal conspiracy, which was the subject matter of B.B.C. No.1 of 1993. Thereafter, on May 22, 1996, the CEI moved an application before the Designated Court (Misc. Application No. 201 of 1996) wherein. It stated that following the disclosure of the involvement of the respondents in the offences in question, raids had been conducted at their known hideouts to arrest them but none could be apprehended in spite of best efforts as they were deliberately evading their arrest to escape the clutches of law and, accordingly, prayed for issuance of non-bailable warrants of arrest against them to initiate further proceedings in the matter to apprehend them and/or to take further action to declare them as proclaimed offenders. Two other applications (Misc. Application Nos. 210 and 211 of 1996) were thereafter moved on June J, 1996 or publication of written proclamations under Section 8(3)(a) of TADA as also for issuance of open dated non-bailable warrants of arrest so that 'Red Corner Notices' might be issued against them. According to CBI such notices are required to be got issued by INTERPOL to seek police assistance in' a foreign country to locate and apprehend fugitives.
5. When the three applications came up for hearing a learned Advocate who was appearing for some of the persons arraigned in B.B.C. No.1 of 1993 submitted before the Designated Court that they were entitled to copies of the applications and a right of hearing on their merits, in the matter. The Designated Court accepted his submissions; and on receipt of the copies of the application the learned Advocate filed a rejoinder thereto. After hearing the parties the Designated Court by .its order dated August 1, 1996, rejected the applications. The above order is under challenge in these appeals preferred at the instance of CBI.
6. From the impugned order we find that bef
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