TMI Blog2013 (12) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... 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came to be adjourned from time to time and in view of some deficiency in the said petition, the same came to be withdrawn with liberty to file a fresh petition.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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be issued under section 70 of the Code, for and in aid of investigation, as there are other ways for the investigating agency to arrest an accused, namely, section 41 of the Code etc. It was pointed out that section 73 of the Code empowers the learned Magistrate to issue a warrant under section 70 of the Code under the contingencies mentioned in sub-section (1) thereof. Thus, while exercising powers under section 73 of the Code, the Magistrate can issue a warrant only under the contingencies mentioned in sub-section (1) of section 70 of the Code and under no circumstances, can a warrant be issued for and in aid of investigation. Under the circumstances, the issuance of warrant under section 70 of the Code by the learned Chief Judicial Magistrate is contrary to the decision of the Supreme Court in the case of State Through Central Bureau of Investigation v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494, for the proposition that a warrant of arrest cannot be issued in exercise of powers under section 73 of the Code for production of an accused before the police in aid of investigation. Reliance was also placed upon an unreported decision of the Jharkhand High Court in the case of Abdul Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent addresses, there is no response thereto. It was pointed out that the first petitioner had filed a false affidavit before the court while seeking anticipatory bail and his whereabouts were not known. Hence, to ascertain the whereabouts of the accused persons, the present course of action was required to be adopted. Referring to the warrant issued under section 70 of the Code, it was pointed out that the same does not state that the accused are required to be produced before the Investigating Officer and hence, even if the Investigating Officer arrests them, the accused will have to be produced before the learned Magistrate. Reliance was placed upon the decision of this court in the case of Savitaben Govindbhai Patel and others v. State of Gujarat, 2004 Cr.L.J. 3651, wherein the court had held that filing of an anticipatory bail application by the accused through their advocate cannot be said to be an appearance of the accused in a competent court, so far as proceeding initiated under section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an anticipatory bail application to avoid obligation to appear before the court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consideration if it comes to the conclusion that there is any error, omission or irregularity in the order, is whether on account of such error, omission or irregularity, failure of justice has been occasioned. If there is no failure of justice, such order cannot be reversed or altered. 6.4. In support of such submission, the learned Additional Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of Bai Radha v. The State of Gujarat, AIR 1970 SC 1396, and more particularly paragraph 7 thereof wherein, the court with reference to the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, observed that all proceedings including investigation had to be conducted in accordance with the procedure laid down in the Criminal Procedure Code except to the extent of the specific provisions contained in the Act, whereas no such provision was brought to the notice of the court, nor had it been contended that section 537 of the Code would not govern the investigation, inquiry or trial of the offences with which the appellant therein was charged. The court held that the ratio of the decision in the case of Bhagwati (sic Bhagwant) Kishore J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitions cannot be declined solely on the ground of section 465 of the Code. It was further contended that the limitation engrafted in section 465 of the Code cannot curtail the jurisdiction conferred upon this court under Article 226 of the Constitution of India or section 482 of the Code. As and when any miscarriage of justice is occasioned and a palpably erroneous order is brought before the court, these barriers, even if applicable, would not bind the hands of the court in doing justice. 7.1. It was submitted that even if the impugned order is set aside by this court on the ground that the arrest warrant cannot be issued in aid of investigation, the same would not preclude the Investigating Officer from filing a fresh application within the four corners of law. It was urged that if the impugned order is not in accordance with law, the same has to be set aside. 7.2. As regards the decision of this court in Savitaben Govindbhai Patel and others v. State of Gujarat (supra) on which strong reliance had been placed on behalf of the respondents, it was submitted that the said decision would not apply to the facts of the present case. It was argued that it is the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the petitions are held to be maintainable, the principal question that would then arise for consideration is as to whether the impugned order made under section 73 of the Code suffers from any legal infirmity. If the answer is in the affirmative, the next question that requires to be answered is whether the provisions of section 465 of the Code would be applicable to an order passed under section 73 of the Code for issuance of a search warrant. If the said question is answered in the negative, the impugned order would be required to be set aside. However, if the question is answered in the affirmative, the question that would then arise is whether the error in the impugned order is such as would occasion failure of justice. 9. The question of maintainability of the petition being in the nature of a preliminary contention would be required to be dealt with at the inception. 10. At the outset, it may be noted that the present petitions have been filed under Article 226 of the Constitution of India read with section 482 of the Code. Thus, the petitioners have invoked the extraordinary powers of this court under Article 226 of the Constitution of India as well as its inherent powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Sessions Court are also mentioned. Lastly, in paragraph 12 of the application, as translated into English, it has been stated thus: As soon as the offence was declared, the Investigating Officer had issued notices to the above accused to remain present for the investigation, but the accused did not remain present and out of the said accused, Narayan Sai has filed a quashing petition before the Gujarat High Court and an application for anticipatory bail before the Sessions Court, therefore, right from the inception, it was the intention of the accused to stall the investigation procedure. For the purpose of bringing these accused within the purview of the investigation process and for completing the same and in the interest of the investigation, it is very necessary to declare them to be absconders, and out of these accused, accused Narayan Sai and accused Bhavna alias Jamuna possess Indian passports and other accused also have passports and as they are likely to flee abroad in future, red corner notices may be required to be issued by Interpol, hence, it is humbly requested that a warrant be issued in English in accordance with section 70 of the Code. 12. Thus, from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of the same, the Investigating Agency has produced bulky documentary evidence. The documentary evidence clearly leads me to believe that, inspite of strenuous and diligent efforts put in by the Investigating agency, the accused persons could not be searched out, and are absconding. This conduct on the part of the accused persons clearly show their intention to avoid their surrender before the Investigating Agency, and thereby, not making themselves available for investigation which is required to probe further in the investigation of this case. This attitude of non-cooperation on the part of the accused persons mentioned in the application has lead the Investigating Agency to take resort of law by way of filing this application seeking issuance of Warrant under section 70 of the Code of Criminal Procedure. The Investigating Agency has also produced the Gujarat Police Manual and has pointed out the provisions, more particularly, Rule 219 of the Manual. Sub-clause (4) sets out provision of request to be made before the Magistrate for issuance of warrant. 7. In view of what has been observed herein above, it clearly appears that, the accused persons mentioned in the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice in aid of the investigation. The court held thus: 20. That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this Section a police officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, (like Sections 466 or 467 (Part I) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has held that warrant of arrest under section 73 of the Code cannot be issued by the courts solely for production of the accused before the police in aid of investigation. Examining the facts of the present case, in the light of the above decision, it is clear that the impugned order is contrary to the law laid down in the said decision, inasmuch as, the warrant under section 70 of the Code has been issued solely in aid of investigation. Thus, the impugned order clearly suffers from a legal infirmity, which fact is also not disputed on behalf of the respondents. However, it has been contended that ultimately, the said error in the judgment stands rectified when the actual warrant is issued, because the same is in the format provided under the Code and that ultimately after arresting the accused under the warrant under section 70 of the Code, the same procedure would be followed even if the warrant is issued in aid of investigation, because the procedure for making remand application would still be required to be followed. In the opinion of this court, such contention does not merit acceptance, inasmuch as, the subsequent issuance of warrant in the standard format cannot cure the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 18. Thus, what section 465 of the Code provides is that a court of appeal, confirmation or revision cannot reverse or alter any finding, sentence or order passed by a court of competent jurisdiction on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 19. At this stage, reference may be made to the decision of the Supreme Court in the case of Wille (William) Slaney v. State of M.P., (1955) 2 SCR 1140, wherein the court has held thus: 5. Before we proceed to set out our answer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation free from the statutory safeguards designed to prevent the abuse of police powers, to secure the necessary information and thereafter to take the requisite permission of the Magistrate and then to shape his investigation to achieve the desired result or to implement his scheme. No doubt this practice, if it exists, must be condemned; but the question is, does the infringement of the salutary provisions of the Act in the matter of investigation, without more, invalidate the trial? If we accept the broad proposition advanced by the learned counsel, we would be disregarding the provisions of s. 537 of the Code of Criminal Procedure; we would be ignoring an honest body of compelling evidence on the basis of the dereliction of duty by the police. The question is not whether in investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the competency or the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, section 537 of the Code of Criminal Procedure, is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result in not affected. Thus, what is observed in the said decision is that after the trial has taken place, when it is contended that the entire proceeding stands vitiated on account of contravention of certain provisions of the Act, the question of applicability of section 537 of the Code would at once arise. 23. In Rattiram v. State of M.P., (2012) 4 SCC 516, the Supreme Court held as follows: 36. In Bhooraji, (2001) 7 SCC 679, the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code. Section 465 reads as follows: 465. Finding or sentence when reversible by reason of error, omission or irregularity.--(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in the course of trial, it is obligatory on the part of the courts to see whether in an individual case or category of cases, because of non-compliance with a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. 47. In State v. T. Venkatesh Murthy the High Court of Karnataka had upheld an order of discharge passed by the trial court on the ground that the sanction granted to prosecute the accused was not in order. The two-Judge Bench referred to Sections 462 and 465 of the Code and ultimately held thus: 13. In State of M.P. v. Bhoorai (supra) the true essence of the expression 'failure of justice' was highlighted. Section 465 of the Code in fact deals with 'finding or sentences when reversible by reason of error, omission or irregularity', in sanction. 14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding 'failure of justice'. Merely because there is any omission, error or irregularity in the matter of according sanction, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure. 25. In Nishan Singh v. State of Punjab, (2008) 17 SCC 505, it was held thus: 23. What would constitute failure to justice came up for consideration before this Court in State of M.P. v. Bhooraji wherein, inter alia, it was held that: 23. We conclude that the trial held by the Sessions Court reaching the judgment impugned before the High Court in appeal was conducted by a court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity. 16. What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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