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2019 (11) TMI 1815 - PUNJAB AND HARYANA HIGH COURTWarrants issued by the Magistrate against the petitioner - whether Magistrate had reason or occasion to exercise his discretion to decide whether the petitioner was evading his arrest or not? - authorisation of police custody - HELD THAT:- The provisions of Section 41 of the Cr.P.C. are quite clear that unless a cognizable offence is committed by a person in the presence of such police officer, police officer cannot arrest an accused only on the basis of his whims that he suspects the said person to have committed some offence. If such person has committed some cognizable offence, which is punishable for imprisonment, then before arresting the person, the police officer has to satisfy himself that the arrest of such person is necessary; for the purposes delineated in the Section itself. This court finds reliance of the counsel for the petitioner on ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT], befitting in the facts of the case. In that judgment, the Hon'ble Supreme Court has unequivocally held that before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section. As a necessary corollary, this would mean that if the conditions mentioned in these provisions are not complied with by the investigating officer, the arrest of the petitioner, from very inception, may be rendered invalid, inviting the adverse legal consequences, even for the concerned police officer. This court also finds that more often then not, the police use the power of the Magistrate to issue warrant of arrest against an accused, only as a tool to avoid its responsibility to carry out the investigation to the logical end; and only for the purpose of getting such an accused declared as proclaimed offender. This methodology is normally adopted by the police just to get rid of the responsibility of putting a report before the Magistrate qua investigation, which otherwise is a mandate of law cast upon the police, or even to avoid arresting an accused in inconvenient cases or inconvenient circumstances. As a result, lots of persons are got declared as proclaimed offenders; and forgotten altogether by the police thereafter - this court is also of the view that before the Magistrate/court has taken cognizance of any offence, the power of issuance of warrants of arrest under any provision of Cr.P.C, on an application of a police officer, cannot be invoked by the Magistrate as a routine matter. Undisputedly, the petitioner has not been arrested by the police despite having power to arrest him without warrant. Therefore, there is nothing on record of the present petition; showing whether the investigating officer was ever satisfied qua the requirement of the petitioner to be arrested or not. This court is presented with only an application moved by the police officer before the Magistrate; seeking issuance of warrant against the petitioner. The said application is silent qua any reason, which requires assistance from the court for arresting the petitioner - By perusing the warrants issued by the Magistrate also, it is quite clear that the Magistrate has issued the warrant only to enlarge the effort of the police qua its investigation; as the reason for issuing warrant of arrest. The only other reason mentioned is that there is no stay of arrest qua the petitioner by any other court. Although the Magistrate may not be required to record any detailed reasons as such for issuing warrants, however, this court is of the view that none of these reasons given in this case is germane to the provisions under which the Magistrate is required to exercise his powers to issue warrants of arrest. There is nothing, either in the order passed by the Magistrate, from which it can be discernible that the Magistrate had some reasons or material to justify the discretion exercised by him. This court finds that impugned warrants issued by the Magistrate cannot be sustained. Hence, the present petition is partly allowed. The impugned warrants of arrest and consequent orders impugned in the present petition are quashed.
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