Madras High Court Directs Magistrate To Issue Non-Bailable Warrants Against Absconding Police Officials U/S 73 CrPC

In an interesting development in the Thirumangalam Entrepreneur Extortion case, Madras High Court has directed the Magistrate to issue Non-Bailable Warrants against the absconding accused including police officials.

The court noted that the accused are evading arrest and the only recourse for the investigation officer is to obtain a Non-Bailable Warrant from the Magistrate under Section 73 of Cr. P.C.

Justice A.D. Jagadish Chandira was hearing a plea filed by Deputy Superintendent of Police, CBCID, challenging the Magistrate order dismissing the petition to issue non-bailable warrants. The Magistrate's order had mentioned that "The said specific provision (Section 73 Cr. P.C) is for issuing warrant to the pending cases, not for issuing warrant to investigation".

The direction has been issued by the High Court for non-bailable warrants against an Assistant Commissioner of Police Sivakumar, Inspector of Police Saravanan and Sub-Inspector Pandiyarajan.

In the case at hand, respondent police officials are booked for cognizable and non-bailable offences. The court relied on State through CBI v. Dawood Ibrahim Kaskar & Ors.,2000(10) SCC 43 to observe that the Magistrate can legitimately exercise his powers under Section 73 of Cr.P.C. for the apprehension of the accused during the investigation.

In Dawood Ibrahim Kaskar, the apex court had held that Section 73 of Cr.P.C. confers the power upon the Magistrate to issue a warrant and the said power can be exercised during investigation too. Noting the same, the court added as below:

"As stated above, the accused in the case are evading arrest and the only course left open to the Investigating Officer to ensure their presence, would be to seek the Magistrate to invoke his power under Section 73 of Cr.P.C. and only thereafter can proceed with the other procedures of proclamation and attachment. In such an eventuality, there is no bar for the Magistrate to legitimately exercise his power under Section 73 of Cr.P.C for the person to be apprehended during investigation since the respondents are accused of Non-Bailable offence and are evading arrest"

According to the investigating officer, the respondents/ accused are evading arrest even after serving summons under Section 41(a) of Cr.P.C. Before the single bench, he submitted that accused police officials are charged for serious offences that are cognizable and non-bailable. The officials who belong to the Uniform Service is expected to comply with the law and cooperate with the investigation, but they have been acting to the contrary so far, he added. He also added that the respondent shave instigated the family members of the victim to make a complaint against him before Human Rights Commission.

The complaint in the case was given by Mr. Rajesh who claims to be an entrepreneur. He alleged that one Mr. Tharun Krishna Prasad and 9 others, along with the police officers, kidnapped the complainant and illegally transferred property belonging to him through extortion. 

A case was registered by the CBCID for the offences under Sections 147, 323, 347, 384 & 420 of IPC which was, later, altered to Sections 147, 323, 347, 384 & 420 of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. According to the police, 5 persons have been arrested so far for the crime.

According to the Hindu, the case was registered since the de facto complainant alleged that he was wrongfully confined along with his fiancee and family members at a farmhouse in Red Hills. The accused allegedly threatened and extorted the complainant's properties and forced him to register his properties in the names of Srinivasa Rao and Tharun Krishnaprasad of Andhra Pradesh. The policemen had resorted to 'illegal settlement' while intervening in a civil dispute, the complainant had informed the police then.

After setting aside the Magistrate's initial order, the High Court has now directed the Special Trial Court for CCB & CBCID, Egmore, Chennai to issue Non-Bailable Warrants of Arrest.

Case Title: State rep by The Deputy Superintendent of Police, CB CID v. A.Sivakumar & Ors

Case No: CRL.O.P.No.6330 of 2022

Citation: 2022 LiveLaw (Mad) 121

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