# Nadeem Salmani v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 418
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Application u/s 482 No. 35979 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-salmani-v-state-of-u-p-anr-opp-parties-49966
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860-Sections 392, & 413/34Quashing
of
Non-bailable
Warrant-IPhone mobile was looted and 20 mobile
phones
were
recovered
from
the
possession of accused persons-In the
present case, the applicant having full
knowledge that he was wanted in this
case
as
accused,
neither
made
him
available for interrogation to the I.O. nor
moved any form of bail application-the
Impugned order was passed by the
custody of the I.O. for the aid in
investigation-There is no bar for issuance
of
non-bailable
against
any
accused
during the investigation in order to bring
the accused before the Magistrate within
twenty four hours from the time of his
arrest, After arrest he may be sent either
to judicial or the police custody as the
case may be-Therefore the order passed
by the concerned Magistrate being in
accordance with law is not liable to be set
aside.(Para 1 to 21)
The application is dismissed. (E-6)

List of Cases cited:

## Text

418 INDIAN LAW REPORTS ALLAHABAD SERIES

12. On the basis the aforesaid
discussions, the Court comes to the
conclusion that the trial court has wrongly
framed an alternative Charge under Section
306 I.P.C, therefore this Application U/s
482 Cr.P.C is liable to be allowed partly.

O R D E R

13. The application is partly allowed
in respect of framing of alternative charge
under Section 306 I.P.C on 01.08.2022 and
the alternative charge framed under Section
306 I.P.C is set aside. The learned trial
court is directed to frame the charge afresh.
The charges so framed may also be altered
exercising the power conferred under
Section 216 Cr.P.C. instead of framing the
fresh charges.

A copy of this order be sent to the
concerned court for compliance. O
----------
(2023) 4 ILRA 418
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 35979 of 2022

Nadeem Salmani ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri A.C. Srivastava

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860-Sections 392, & 413/34Quashing
of
Non-bailable
Warrant-IPhone mobile was looted and 20 mobile
phones
were
recovered
from
the
possession of accused persons-In the
present case, the applicant having full
knowledge that he was wanted in this
case
as
accused,
neither
made
him
available for interrogation to the I.O. nor
moved any form of bail application-the
Impugned order was passed by the
custody of the I.O. for the aid in
investigation-There is no bar for issuance
of
non-bailable
against
any
accused
during the investigation in order to bring
the accused before the Magistrate within
twenty four hours from the time of his
arrest, After arrest he may be sent either
to judicial or the police custody as the
case may be-Therefore the order passed
by the concerned Magistrate being in
accordance with law is not liable to be set
aside.(Para 1 to 21)
The application is dismissed. (E-6)

List of Cases cited:

1. Ekta @ Bulbul Vs St. of U.P. & anr. Appl. u/s
482 No. 30391 of 2016

2. St. thru CBI Vs Dawood Ibrahim Kaskar &
ors. (1997) AIR SC 2494

3. D.K. Basu Vs St. of W.B. (1997) 1 SCC 416

4. Harendra Vs St. of U.P. & ors., CRLR No.
3468 of 2013

5. Smt. Pragati Chaudhary @ Pragati Singhal Vs
St. of U.P. & anr.,Appl. u/s 482 No. 2994 of
2018

6. Manoj @ Ase & ors. Vs St. of U.P., CRLR No.
2827 of 2010

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri A.C. Srivastava, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned A.G.A for the State, and
perused the material available on record.
4 All. Nadeem Salmani Vs. State of U.P. & Anr.
419

2. This Criminal Misc. Application
has been moved by the applicant under
Section 482 Cr.P.C against the order dated
02.09.2022 passed by the Special Chief
Judicial Magistrate, Meerut in Case Crime
No. 303 of 2021 under Sections 392,
413/34 I.P.C Police Station Delhi Gate,
district Meerut, by which non-bailable
warrant was issued against the accusedapplicant
on
the
application
of
Investigating Officer of the case.

3. In brief, facts of the case are that
one Ramesh Katiyar, R/o Lucknow had
come to Meerut to attend the Samajwaadi
Rally on 07.12.2021 and had been stayed in
Meerut. On 08.12.2021 when he was going
towards Ghantaghar and was talking with
someone familiar near the ladies hospital,
an unknown person fled away taking his
red colour Apple I phone mobile at about
5:00 p.m. towards Chhatripeer.

4. On 08.12.2021 five accused
persons were arrested near the Town Hall at
Gandhi Park and four accused persons
succeeded in fleeing. Total 20 mobiles were
recovered from their possession. On asking,
they informed that the red colour I Phone
mobile was also looted by them, they
informed that accused Irfan and Sharad
Goswami had succeeded in fleeing. They
also informed that their gang leader is
Inaam the and the Boss is Sharad Goswami
and two others are Irfan and Mahfooz, who
had succeeded in escaping, it appears that
during the course of investigation the name
of the applicant also came into picture and
the I.O. came to the conclusion that the
informant Nadeem Saqulani is also one of
the gang member and the accused. It
appears that when the accused could not be
arrested, an application was moved by the
I.O. Mahendra Singh on 01.09.2022
submitted by the competent authority upon
which
the
Special
Chief
Judicial
Magistrate, Meerut called for a report from
the office, who reported that the applicant
accused Nadeem Saqulani has not moved
any application in the concerned crime no.
303 of 2021 under Sections 392, 413/34
I.P.C. After investigation a charge-sheet
under Section 392/34 I.P.C was submitted
against the accused persons in which
cognizance
has
been
taken
by
the
concerned Court.

5. On 01.09.2022 an application was
submitted by the I.O. Gajendra Singh, S.I,
Police Station Delhi Gate, Meerut that the
wanted accused-applicant Nadeem Salmani
is absconding and hiding his identity and is
in the process of disbursing his immovable
property, therefore a non bailable warrant
was issued against him by the Special Chief
Judicial Magistrate, Meerut on 02.09.2022.
The application and the impugned order are
as under:-

"ररपोटि थािा देहिीगेट ििपद मेरठ।

सेवा में,

माििीय न्यायािय श्रीमाि थपेशि सीिे०एम महोदय

ििपद मेरठ।

नवर्यः- मु०अ०सं० 303/21 धारा 392/413/34
भादनव में प्रकाश में आये वांनछत अनभयुक्त िदीम सिमािी पुत्र
सिीम सिमािी निवासी 242 कुएं वािी गिी कोटिा थािा
देहिीगेट मेरठ के गैर िमािती वारण्ट िारी करिे के सम्िन्ध में।

महोदय,

सादर निवेदि है नक मु०अ०सं० 303/21 धारा
392/413/34 भादनव में प्रकाश में आये वांनछत अनभयुक्त िदीम
सिमािी पुत्र सिीम सिमािी निवासी 242 कुएं वािी गिी
कोटिा थािा देहिीगेट मेरठ के नवरुद्ध नगरफ्तारी के सम्िन्ध में
काफी प्रयास नकये गये है नकन्तु अनभयुक्त िदीम सिमािी उपरोक्त
अपिे मसकि से फरार है और अपिी पहिाि नछपाये हुये है तथा
िोरी नछपे अपिी अिि सम्पनत्त को िुदि िुदि कर फरार होिे की
नफराक में है। माििीय न्यायािय से अिुरोध है नक अनभयुक्त िदीम
सिमािी उपरोक्त के नवरुद्ध गैर िमािती वारण्ट िारी करिे की कृपा
करें।
420 INDIAN LAW REPORTS ALLAHABAD SERIES

ररपोटि सादर सेवा मे प्रेनर्त है।

(गिेन्र नसंह)

उ०नि०

थािा देहिीगेट मेरठ।"

x x x

"न्यायािय नवशेर् मुख्य न्यानयक मनिथरेट, मेरठ।

मु०अ०सं० 303/2021

धारा 392,413,34 भा०द०सं०,

थािा देहिी गेट, नििा मेरठ।

02.09.2022-

मु०अ०सं०
303/2021,
धारा 392,413,34
भा०द०सं० थािा देहिी गेट, नििा मेरठ के अनभयोग में नववेिक
गिेन्र नसंह के द्वारा अनभयुक्त िदीम सिमािी पुत्र सिीम सिमािी,
निवासी 242 कुए वािी गिी, कोटिा, मेरठ के नवरुद्ध गैर
िमािती वारन्ट निगित नकये िािे हेतु प्रथतुत नकया गया है।

नववेिक द्वारा अपिे प्राथिा पत्र में कहा गया है नक अनभयुक्त
की नगरफ्तारी हेतु कई िार दनिश दी गयी, परन्तु वे फरार िि रहे हैं।

अनभयोिि प्रपत्रों का अविोकि नकया। नववेिक के अिुसार
अनभयुक्त की नगरफ्तारी हेतु कई िार दनिश दी गयी, परन्तु वह फरार
िि रहा है।

कायािय ररपोटि के अिुसार अनभयुक्त उपरोक्त की ओर से
कोई आत्म समपिण प्राथिा पत्र न्यायािय में िनम्ित िहीं है और ि
ही माििीय उच्ि न्यायािय का कोई थथगि आदेश प्राप्त है। िूंनक
अनभयुक्त उपरोक्त मामिे में वांनछत है और उसके निकट भनवष्य में
न्यायािय में उपनथथत होिे की सम्भाविा िहीं है। अतः नववेिक की
तरफ से प्रथतुत प्राथिा पत्र थवीकार नकये िािे योग्य है।

आ दे श

नववेिक की तरफ से प्रथतुत प्राथिा पत्र थवीकार नकया िाता
है । अनभयुक्त िदीम सिमािी पुत्र सिीम सिमािी, निवासी 242
कुए वािी गिी, कोटिा, मेरठ के नवरुद्ध गैर िमािती वारन्ट नदिांक
03.10.2022 के निए िारी हो।

नवशेर् मुख्य न्यानयक मनि०

मेरठ।"

6 . The accused applicant- Nadeem
Salmani has challenged the order on the
basis of judicial pronouncements in the
cases of Ekta @ Bulbul Vs. State of U.P.
and another, pronounced in Application
U/s 482 No. 30931 of 2016 dated
17.11.2016, order passed in Criminal
Revision
No.
3468
of
2013
dated
12.12.2013 passed by Court No. 22 of this
Court, Application U/s 482 No. 29924 of
2018 dated 29.08.2018 passed by Court
No. 53, Criminal Revision No. 2827 of
2010 dated 27.07.2010 passed by Court
No. 50 - (Manoj @ Ase & Others Vs. State
of U.P.) and in State through C.B.I Vs.
Dawood Ibrahim Kaskar & Ors. 1997 (4)
Supreme 490 and argued that on the basis
of aforesaid pronouncements a court of
Magistrate cannot issue N.B.W against the
accused-applicant
to
facilitate
the
Investigating
Officer
during
the
investigation.

7. Learned A.G.A opposed the
application, but he is not willing to file
counter affidavit as all the materials have
already been produced by the applicant,
hence heard learned counsel for the parties
and perused the material available on
record.

8. According to Section 73 Cr.P.C, a
Magistrate is empowered to issue a warrant
for the arrest of any escaped convict,
proclaimed offender or any person who is
accused of a non-bailable offence and is
evading arrest. Such warrant may be given
to any person to execute the same under
Section 73 (3), it has also been mentioned
that when the wanted accused is arrested,
he shall be made over with the warrant to
the nearest police officer, who shall cause
him to be taken before the Magistrate
having jurisdiction in the case, unless
security is taken under Section 71.

9. The applicant has filed a copy of
the charge-sheet, submitted against the
accused persons namely Inam, Anas,
Arshad Gaddi, Naazim Shaikh and Mehtab.
4 All. Nadeem Salmani Vs. State of U.P. & Anr.
421
Mahfuz, Irfaan and Sharad Goswami are
shown as absconder.

10. Learned counsel for the applicant
relied on the judgment of State through
C.B.I Vs. Dawood Ibrahim Kaskar & Ors.
A.I.R 1997 SC 2494, in which the scope of
Section 73 Cr.P.C has been discussed. In
the cited case the accused was wanted for
commission of various offences punishable
under the I.P.C and under the TADA Act,
1987, Arms Act 1959, Explosive Substance
Act, 1908 and other Acts. This case is
known as BBC No. 1/93 (Bomb-blast
case). Learned counsel for the applicant is
solely relying on this case, therefore it
would be proper to quote the relevant paras
of this judgement, which are is as under:-

"6. From the impugned order we find
that before the Designated Court it was
submitted on behalf of CBI that since it was
making further investigation into the
offences in respect of which chargesheet
has earlier been submitted and since the
presence of the respondents, who were
absconding, was absolutely necessary for
ascertainment of their roles, if any, in
commission of the offences, it was felt
necessary to file the applications. It was
further submitted that only after warrants
and/or proclamations as prayed for were
issued, that it (CBI) would be able to take
further coercive measure to compel them to
appear before the Investigating Agency for
the
purpose
of
intended
further
investigation. According to CBI under
Section 78 of the Code and Section (3)(a)
of TADA the Designated Court was fully
empowered to issue warrants of arrest and
proclamations. In rejecting the above
contention the Designated Court held that
after cognizance was taken in respect of an
offence process could be issued to the
persons accused thereof only to compel
them to face the trial but no such process
could be issued by the Court in aid of
investigation under Section 73 of the Code.
According to the Designated Court, though
under code further investigation was not
barred there was no provision therein
which entitled the Investigating Agency to
seek for and obtain aid from the Court for
the same. Since the above findings were
recorded by the Designated Court relying
solely upon the judgment of the Bombay
High Court in Mohammad Yasin Mansuri
vs. State of Maharastra. (1994) Crl.L.J.
1854, it will be necessary to refer to the
same in some details. In that case
investigation into an offence of murder and
other related offences was taken up initially
by the Officer-in-Charge of Byculla Police
Station and thereafter by a Deputy
Commissioner of Police (DCP) of CID.
During the investigation the Designated
Court, on the prayer of the DCP, issued
non-bailable warrants for apprehension of
some of the accused involved in those
offences. Thereafter a charge-sheet came to
be filed against several accused, some of
whom were before the Court and some
other including Mansuri (the petitioner
before the High Court) were shown as
absconding. In the very day the chargesheet was filed Designated Court took
cognizance of the offences mentioned
therein. Few months later Mansuri came to
be arrested by the CBI, Delhi in connection
with some other offence. On receipt of that
information the DCP filed an application
before the Designated Court for warrants
of arrest and production of Mansuri before
it. The prayer was allowed and in due
course Mansuri was brought to Bombay
and handed over to DCP. On the following
day Mansuri was produced before the
Designated Court; and on such production
the prosecution prayed for remand of
Mansuri to police custody. The prayer was
422 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed
and
the
Designated
Court
remanded him to police custody, but kept
the order in abeyance for a few days to
enable Mansuri to challenge the same in a
superior court. Assailing the above order of
the Designated Court, Mansuri moved the
Bombay High Court. Before the High Court
it was submitted on behalf of Mansuri that
once investigation into an offence was
complete and a charge-sheet was filed, the
provisions of Section 309 of the Code came
into operation and sub-section (2) of the
said Section left no discretion to a Court.
The only course open to the Court then was
to remand the accused to judicial custody.
It was further submitted that whereas
Section 167 conferred a discretion upon the
Court of authorising detention of an
accused either in judicial custody or police
custody such discretion was completely
absent in Section 309 of the Code.
Accordingly, it was submitted that the order
passed by the Designated Court granting
Mansuri to Police custody was without
jurisdiction and liable to be set aside. In
accepting
the
above
contention
and
quashing the impugned order the High
Court firstly observed:

"It would, therefore, follow that the
warrants which were issued by the
Designated Court for production of the
petitioner could not have been in aid of
investigation but could only have been by
way of process issued under Section 204 of
the Code of Criminal Procedure. Issue of
warrants after cognizance of an offence is
taken would be a process contemplated
under Section 204(1)(b) of the Code, i.e. it
would be a process to face trial. Indeed. We
do not find any provision contained in the
Code for issue of warrants of arrest and
custody of accused for the purpose of, or in
aid
of,
investigation.
The
process
contemplated is a process to face trial."

(emphasis supplied)
8. In view of the provision of Chapter XII
and those of Section 309(2) of the Code we
are constrained to say that the above
quoted observations have been made too
sweepingly.
Chapter
XII
relates
to
information to the police and their powers
to investigate. Under Section 154 thereof
whenever an Officer-in-Charge of a police
station receives and information relating to
the commission of a cognizable offence he
is required to reduce the same in writing
and enter the substance thereof in a
prescribed book. Section 156 invests the
Officer-in-Charge of a police station with
the power to investigate into cognizable
offences without the order of a Magistrate
and Section 157 lays down the procedure
for such investigation. In respect of an
information given of the commission of a
non-cognizable
offence,
the
Office-incharge required under Section 155(1) to
enter the substance thereof in the book so
prescribed but he has no power to
investigate into the same without an order
of the competent Magistrate. Armed with
such an order the Officer-in-charge can
however
exercise
all
the
power
of
investigation he has in respect of a
cognizable offence except that he cannot
arrested during investigation has to be
dealt with by the investigation Agency, and
by the Magistrate on his production before
him, is provided in Section 167 of the Code.
The said Section contemplates that when
the investigation cannot be completed
within 24 hours fixed by Section 57 and
there are grounds to believe that the charge
levelled against the person arrested is well
founded it is obligatory on the part of the
Investigation
Officer
to
produce
the
accused before the nearest Magistrate. On
such production the Magistrate may
authorise the detention of the accused
initially for a term not exceeding 15 days
either in police custody, or in judicial
4 All. Nadeem Salmani Vs. State of U.P. & Anr.
423
custody. On expiry of the said period of 15
days the Magistrate may also authorise his
further detention otherwise than in police
custody if he is satisfied that adequate
grounds exist for such detention. However,
the total period of detention during
investigation cannot be more than 90 days
or 60 days, depending upon the nature of
offences mentioned in the said Section.
Under Sub-section (1) of Section 173 the
Officer-in-charge
is
to
complete
the
investigation without unnecessary delay
and as soon as it is completed to forward,
under Sub-section (2) thereof, to the
competent Magistrate a report in the form
prescribed setting forth the names of the
parties, the nature of the information and
the names of the persons who appears to be
acquainted with the circumstances of the
case. Sub-Section (8) entitles the Officer-inCharges to made further investigation and
it reads as under:

"Nothing in this section shall be
deemed to preclude further investigation in
respect of an offence after a report under
Sub- section (2) has been forward to the
Magistrate
and,
where
upon
such
investigation, the officer in charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report to the report
regarding such evidence in the form
prescribed, and the provisions of subsection (2) to (6) shall, as far as may be,
apply in relation to such report or reports
as they apply in relation to a report
forwarded under sub- section (2)."

10. Though under the old Code there
was no express provision - like sub-section
(8) of Section 173 of the Code - statutorily
empowering in Police to further investigate
into an offence in respect of which a
charge-sheet has already been filed and
cognizance taken under Section 190(1)(b),
such a power was recognised by this Court
in Ram Lal Narang vs. State [AIR 1979 SC
1791]. In exemplifying the situation which
may prevail upon the police to take up
further investigation and the procedure the
Court may have to follow on receipt of the
supplemental report of such investigation,
this Court observed:

"It is easy to visualise a case where
fresh material may come to light which
would implicate persons not previously
accused
or
absolve
persons
already
accused. When it comes to the notice of the
investigating agency that a person already
accused of an offence has a good alibi, is it
not the duty of that agency to investigate
the genuineness of the plea of alibi and
submit a report to the Magistrate? After all
the investigating agency has greater
resources at its command than a private
individual.
Similarly,
where
the
involvement of persons who are not already
accused comes to the notice of the
investigating agency, the investigating
agency cannot keep quiet and refuse to
investigate the fresh information. It is their
duty to investigate and submit a report to
the Magistrate upon the involvement of the
other persons. In either case, it is for the
Magistrate to decide upon his future course
of action depending upon the stage at
which the case is before him. If he has
already taken cognizance of the offence, but
has not proceeded with the enquiry of not
proceeded with the enquiry of trial, he may
direct the issue of process to persons
freshly discovered to be involved and deal
with all the accused, in a single enquiry of
trial. If the case of which he has already
proceeded to some extent, he may take fresh
cognizance of the offence disclosed against
the newly involved accused and proceed
with the case as a separate case. What
action
a
Magistrate
is
to
take
in
accordance with the provisions of the Code
of Criminal Procedure in such situations is
424 INDIAN LAW REPORTS ALLAHABAD SERIES
a matter best left to the discretion of the
Magistrate."

12. There cannot be any manner of
doubt that the remand and the custody
referred to in the first proviso to the above
sub-section are different from detention in
custody under Section 167. While remand
under the former relates to a stage after
cognizance and can only be to judicial
custody, detention under the latter relates
to the stage of investigation and can
initially be either in police custody or
judicial custody. Since, however, even after
cognizance is taken of an offence the police
has a power to investigate into it further,
which can be exercised only in accordance
with Chapter XII, we see no reason
whatsoever why the provisions of Section
167 thereof would not apply to a person
who comes to be later arrested by the
police in course of such investigation. If
Section 309(2) is to be interpreted - as has
been interpreted by the Bombay High Court
in Mansuri (supra) - to mean that after the
Court takes cognizance of an offence it
cannot exercise its power of detention in
police custody under Section 167 of the
Code, the Investigating Agency would be
deprived of an opportunity to interrogate a
person
arrested
during
further
investigation, even if it can on production
of sufficient materials, convince the Court
that his detention in its (police) custody
was essential for that purpose. We are
therefore of the opinion that the words
"accused if in custody" appearing in
Section 309(2) refer and relate to an
accused who was before the Court when
cognizance was taken or when enquiry or
trial was being held in respect of him and
not to an accused who is subsequently
arrested in course of further investigation.
So far as the accused in the first category is
concerned he can be remanded to judicial
custody only in view of Section 309(2), but
he who comes under the second category
will be governed by Section 167 so long as
further
investigation
continues.
That
necessarily means that in respect of the
latter
the
Court
which
had
taken
cognizance of the offence may exercise its
power to detain him in police custody,
subject to the fulfilment of the requirements
and the limitation of Section 167.

13. The moot question that now
requires to be answered is whether a Court
can issue a warrant to apprehend a person
during investigation for his production
before police in aid of the Investigating
Agency. While Mr. Ashok Desai, the
learned Attorney General who appeared on
behalf of CBI, submitted that Section 73
coupled with Section 167 of the Code
bestowed upon the Court such power, Mr.
Kapil Sibal, who appeared as amicus curie
(the respondents did not appear inspite of
publication
of
notice
in
newspaper)
submitted that Court has no such power. To
appreciate the steps of reasoning of the
learned counsel for their respective stands
it will be necessary to refer to the relevant
provision of the Code and TADA relating to
issuance of processes.

14. Chapter VI of the Code which is
captioned
as
`processes
to
compel
appearance' consists of four parts part A
relates to Summons; part B to warrant of
arrest; part C to proclamation and
attachment and part D to other rules
regarding processes. Part B, with which we
are primarily concerned in these appeals,
has in its fold Section 70 to 81. Section 70
speaks of the form in which the warrant to
arrest a person is to be issued by the Court
and of its durational validity. Section 71
empowers the Court issuing the warrant to
direct the officer who is to execute the
warrant, to release that person on terms
and condition as provided therein. Section
72 provides that a warrant shall ordinarily
4 All. Nadeem Salmani Vs. State of U.P. & Anr.
425
be directed to one or more police officers
but if its immediate execution in necessary
and no
police
officer
is
immediate
available it may be directed to any other
person for execution. Section 73 which is
required to be interpreted in these appeals,
read as under:

"73(1) The Chief Judicial Magistrate
of a Magistrate of the first class may direct
a warrant to an person within his local
jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any
person who is accused of a non-bailable
offence and is evading arrest.

(2) Such person shall acknowledge in
writing the receipt of the warrant, and shall
execute it if the person for whose arrest it
was issued, is in, or enter on, any land or
other property under his charge."

x x x

20. At this stage it is pertinent to
mention that under the old Code the
corresponding provision was Section 78;
and while recommending its amendment the
Law Commission in its 41st report stated,
inter alia:

"6.8 Section 78 at present confers a
power on the District Magistrate or SubDivisional Magistrate to issue a special
type of "warrant to a land-holder, farmer or
manager of land within the district of subdivision for the arrest of an escaped
convict, proclaimed offender or person who
has been accused of a non-bailable offence
and who has eluded pursuit". Although the
power is infrequently exercised, there
appear to be no objection to conferring it
on all Magistrates of the first class and
all...

(emphasis supplied)

21. Apart from the above observations
of the Law Commission, from a bare
perusal of the Section (quoted earlier) it is
manifest that it confers a power upon the
class of Magistrates mentioned therein to
issue warrant for arrest of three classes of
person, namely, i) escaped convict, ii) a
proclaimed offender and iii) a person who
is accused of a non-bailable offence and is
evading arrest. If the contention of Mr.
Sibal that Section 204 of the Code is the
sole repository of the Magistrate's power to
issue warrant and the various Sections of
part `B' of Chapter VI including Section 73
only lay down the mode and manner of
execution of such warrant a Magistrate
referred to under Section 73 could not - and
would not - have been empowered to issue
warrant of arrest for apprehension of an
escaped convict, for such a person can not
come within the purview of Section 204 as
it relates to the initiation of the proceeding
and not to a stage after a person has been
convicted on conclusion thereof.

23. Another factor which clearly
indicates that Section 73 of the Code gives
a power to the Magistrate to issue warrant
of arrest and that too during investigation
is evident from the provisions of part `C' of
Chapter VI of the Code, which we have
earlier adverted to. Needless to say the
provisions of proclamation and attachment
as envisaged therein is to compel the
appearance of a person who is evading
arrest. Now, the power of issuing a
proclamation under Section 82 (quoted
earlier) can be exercised by a Court only in
respect of a person `against whom a
warrant has been issued by it'. In other
words, unless the Court issues a warrant
the provisions of Section 82, and the other
Sections that follow in that part, cannot be
invoked in a situation where inspite of its
best effects the police cannot arrest a
person under Section 41. Resultantly, if it
has to take the coercive measures for the
apprehension of such a person it has to
approach the Court to issue warrant of
arrest under Section 73; and if need be to
426 INDIAN LAW REPORTS ALLAHABAD SERIES
invoke the provisions of part `C' of Chapter
VI. (Section 8 (3) in case the person is
accused of an offence under TADA)."

11. From the perusal of the aforesaid
judgment, it is very much clear that under
Section 73 of the Code, the Magistrate is
empowered to issue warrant of arrest even
during the investigation, if such power is
withdrawn, the procedure under Sections
82 & 83 Cr.P.C which are essential to
ensure the attendance of the accused would
be redundant and of no use. In the cited
case the Apex Court has averred that a nonbailable warrant may be issued by the
Magistrate even during the investigation.
Issuance of non-bailable warrant during the
investigation by the Court is not forbidden.

12. In the case of D.K. Basu Vs. State
of West Bengal 1997 (1) SCC 416 riders
and guidelines have been laid down by the
Apex Court, that when an accused is
arrested he shall be produced in the court
within
24
hours
and
thereafter
the
concerned Magistrate may send him either
in judicial custody or in Police Custody for
a period not exceeding fifteen days on the
application of the I.O.

13. In this case application moved by
the I.O was allowed and N.B.W was issued
by the concerned Magistrate to produce the
accused in the Court on 03.10.2022.
Generally in cognizable and non-bailable
cases as precautionary measure, I.O. move
application for issuance of non-bailable
warrant against the accused and when they
are arrested, they are generally produced
within twenty four hours before the
concerned Magistrate as per the mandate of
Section 57 of the Cr.P.C. and Article 22 (2)
of the Constitution of India. Even if the
courts hours are over, they are produced
before the concerned Magistrate at their
houses or before the Remand Magistrate.

14. From the perusal of the
application moved by the I.O. and the
impugned order, it transpires that the
applicant is wanted as accused in the
concerned case and the I.O. raided at his
residence several times but he was found
absconding. The learned Special Chief
Judicial Magistrate has also mentioned this
fact that since the accused is wanted in the
concerned case and there is no likelihood of
his appearance in the Court, he allowed the
application and issued non-bailable warrant
for his production on 03.10.2022. From the
impugned order it is very much clear that
the non-bailable warrant was issued for
production of the accused in the Court. It
has already been mentioned by the Apex
Court that there is no bar regarding
issuance of non-bailable warrant during the
course of investigation. The Apex Court
has clearly observed that the provisions of
proclamation and attachment as envisaged
therein is to compel the appearance of a
person, who is evading arrest. The power of
issuing a proclamation and attachment
under Sections 82 and 83 can be exercised
by a court only in respect of a person
against whom a warrant has been issued by
it. Therefore, the I.O. has to approach the
court to issue warrant of arrest under
Section 73.

15. In para 20, the Apex Court has
again opined that Section 73 of the Code is
of general obligation and that in the course
of investigation a court can issue a warrant
in exercise of power thereunder to present,
inter-alias a person, who is accused of a
non-bailable offence and is evading arrest.
The Apex Court has put only a rider that
such
warrant
cannot
be
issued
for
4 All. Nadeem Salmani Vs. State of U.P. & Anr.
427
production of the accused before the court
in aid of investigation.

16. The Apex Court has made it clear
that even a Non Bailable Warrant can be
issued
against
the
accused
on
the
application of I.O or the police, but if he is
arrested, he shall be brought before the
Magistrate and after perusing the case
diary, if he finds sufficient material to
remand the accused he shall send the
accused either in judicial custody or on in
police custody on the application of the I.O.

17. Learned counsel for the applicant
Sri A.C. Srivastava has filed several orders
of this Court, in which the matters relating
to Districts Meerut, Ghaziabad and Gautam
Budh Nagar, have been stayed from the
Court, which are as under:-

(A). In Application U/s 482 No. 30931
of 2016 - Ekta @ Bulbul Vs. State of U.P.
& Ors. Court No. 24, of this Court on
17.11.2016, has passed an order not to take
coercive action against the accused in a
Case under Sections 302, 201 I.P.C, Police
Station Pallavpuram, District Meerut.

(B). In Criminal Revision No. 3468 of
2013 Harendra Vs. State of U.P. & Ors.
Court No. 22 of this Court on 12.12.2013,
in a case under Section 302 / 34 and 120-B
I.P.C granted relief that till the next date of
listing no coercive steps shall be taken
against the revisionist.

(C). In Application U/s 482 No. 2994
of 2018 - Smt. Pragati Chaudhary @
Pragati Singhal Vs. State of U.P. &
Another, Court No. 52 of this Court granted
relief on 29.08.2018 that until the date of
next listing, operation of the impugned
order issuing the non-bailable warrant
passed by the C.J.M Ghaziabad, in Case
Crime No. 1439 of 2014, under Section 468
I.P.C, P.s. Kavi Nagar, District Ghaziabad,
shall remain stayed.

(D). In Criminal Revision No. 2827 of
2010 - Manoj @ Ase & Ors. Vs. State of
U.P, in which Court No. 50 of this Court
on 27.07.2010, has passed an order not to
take coercive steps against the revisionist in
Case Crime No. 211 of 2010, in pursuance
of the order passed under Section 73
Cr.P.C. but also added that however the
investigation shall go on.

(E). In Application U/s 482 No. 36036
of 2022 - the present accused (Nadeem
Salmani Vs. State of U.P. and another) the
Court No. 64 has set aside the N.B.W order
dated
02.09.2022,
but
directed
that
applicant shall remain available at the
address disclosed in the present application
and cooperation would be provided to the
I.O in the pending proceedings and in the
event of failure to cooperate, he may be
dealt with in accordance with law.

18. This Court has some what
different opinion as there is no bar for
issuance of non-bailable against any
accused during the investigation, if such
non-bailable warrant has been issued, for
bringing
the
accused
before
the
concerned
Magistrate/Judge
within
twenty four hours from the time of
his/her arrest. After arrest he/she may be
sent either to judicial or the police
custody as the case may be or he may be
enlarged on bail and the I.O is at liberty
to
obtain
a
permission
regarding
recording of his/her evidence from the
court visiting the jail or if he/she has
made any disclosure statement regarding
recovery of any incriminating material,
on the application of the I.O. accused
may be remanded to the police custody
remained for a limited period for the
purpose of investigation.
428 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is noteworthy that in this case
the applicant having full knowledge that he
was wanted in this case as accused, neither
made him available for interrogation to the
I.O nor moved any form of bail application.
In
another
similar
matter
he
had
approached this Court taking shelter of the
verdict State through C.B.I. (supra) and
has been granted some relief.

20. In this case, it does not appear that
the application was moved by the I.O or the
the impugned order was passed by the
concerned Magistrate / Judge to provide the
accused in the custody of the I.O for the aid
in investigation. The Magistrate has issued
the non-bailable warrant for presentation of
the accused in the Court for 03.10.2022,
therefore the order passed by the concerned
Magistrate being in accordance with law is
not liable to be set aside. According to this
Court, the impugned order is correct in the
eye of law and the application is liable to
be rejected.

O R D E R

21. The Application U/s 482 is
dismissed accordingly.

22. A copy of this order be sent to
learned Special Chief Judicial Magistrate,
Meerut for information and necessary
action.
----------
(2023) 4 ILRA 428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 37387 of 2022

Azeem Husain ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Manoj Kumar Gupta

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 482 - Narcotics
Drugs & Substance Act,1985 -Sections 8C/20-b - 8-A/28-Quashing of-rejection
order passed by Trial Court to release the
truck-3
quintal
96
kg.
Ganja
was
recovered from the truck-a report for
confiscation had been forwarded by the
S.H.O. to D.M. but till date DM has not
started the proceedings of confiscation,
even after a lapse of one year- In absence
of initiation of any confiscation proceeding
or order, it is open to the concerned Court
to exercise its jurisdiction under Chapter
XXXIV
of
the
Code
of
Criminal
Procedure,1973-Thus, the impugned order
is liable to be quashed.(Para 1 to 16)

The application is allowed. (E-6)

List of Cases cited:

Manak Lal Vs Central Bureau of Narcotics (2019)
JCC Online M.P. 2031
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Manoj Kumar Gupta,
learned counsel for the applicant, Sri
Pankaj Kumar Tripathi, learned A.G.A for
the State and perused the material available
on record.

2. This application under Section 482
Cr.P.C has been moved on behalf of the
applicant
to
quash
the
order
dated
08.09.2022 passed by Special Judge
(N.D.P.S Act) / A.S.J. F.T.C (Crime Against
Women) in Case Crime No. 163 of 2022 -
State Vs. Zubair and Others, under Section