Non-Bailable Warrant U/S 73 CrPC Cannot Be Issued To Produce Accused Before Police For Investigation: Delhi High Court

The Delhi High Court has ruled that issuance of a non-bailable warrant under Section 73 CrPC by a Magistrate, for the production of the accused before the police for investigation is illegal, as such a warrant could only be issued for the production of the accused before a court.

Further, the Court held that under Section 82 CrPC, a Magistrate must record reasons for believing that a person has absconded before issuing any proclamation.

Justice Vikas Mahajan was considering the petitioner's challenge to the Magistrate's order dated 26.04.2024, which cancelled a stay on proceedings against the petitioner under Section 82 CrPC (proclamation for person absconding) on 23.02.2024.

Background of case

A case was registered against the petitioner/accused under Sections 354(B) (assault against woman with intent to disprove), 506 (punishment for criminal intimidation) and 509 (insulting modesty of a woman) of IPC.

The Investigating Officer (IO) issued a notice under Section 41A CrPC on 03.02.2024 for the petitioner to appear on 04.02.2024. A similar notice was given on 05.02.2024, asking the petitioner to appear on 06.02.2024. Both these notices were served to the petitioner's mother.

On 06.02.2024, the IO filed an application before the Metropolitan Magistrate to issue a non-bailable warrant (NBW) against the petitioner/accused, claiming the petitioner was deliberately avoiding the investigation. The Magistrate issued the NBW on the same day and this order was only one line which read “Heard. NBW issued accused Lakshay for 12/2/24.”

Apprehending arrest in the case, the petitioner filed an anticipatory bail application before the Sessions Court.

While this was pending, the IO filed an application before the Metropolitan Magistrate on 14.02.2024 to initiate process under Section 82 CrPC against the petitioner. On the same day, the Magistrate allowed the application and initiated process against the petitioner. This order too was one line and read “heard. Application is allowed. 82 CrPC against accused Lakshay Jaiswal is issued for 28.03.2024”.

However, the Magistrate stayed the process under Section 82 CrPC on 23.02.2024. But once again on application by the IO, the Magistrate vacated the stay on the process i.e cancelled the above order on 26.04.2024.

On 31.05.2024, the petitioner/accused was declared an absconder by the Magistrate. Subsequently, on 28.06.2024, the Magistrate issued warrants of attachment of moveable property of the petitioner/accused under Section 83 CrPC.

Inherent power of High Court

The High Court noted that the present only challenges the Magistrate's order dated 26.04.2024, which cancelled the process under Section 82 Cr.PC.

However, the Court also decided on the legality of the other orders issued by the Magistrate.

The Court stated that as the present petition was filed under Section 482 CrPC, it can exercise its inherent power to quash any proceedings to ensure justice.

“...this Court while exercising its inherent powers under the said provisions cannot shut its eyes if it finds that certain orders passed under the Code, albeit not specifically challenged, tantamount to abuse of process of court.”

Therefore, the Court decided on the following orders:

Issuance of Non-bailable warrant

The High Court stated that under Section 73 Cr.PC, a warrant of arrest can be issued solely for the production of the accused before the court and not for his production before the police for investigation. It referred to the Supreme Court judgment in Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors, where it was held that NBWs should be issued to bring a person to court only when a summons or bailable warrant would be unlikely to have the desired result.

In the present case, the Court noted that the IO's application before the Magistrate dated 06.02.2024 alleged that the petitioner was avoiding joining the investigation and thus prayed for the issuance of NBW. The Court stated that the purpose for which the NBW was sought is in violation of Section 73 Cr.PC. The Court said:

“Thus, the very purpose for which the investigating officer approached the learned Trial Court for the issuance of non-bailable warrants is contrary to mandate of law.”

It also noted that instead of issuing a summons first, the Magistrate straightaway issued NBW against the petitioner. It stated that this order was passed without examining proper facts and without application of mind,

It thus quashed the order of the Magistrate dated 06.02.2024.

Issuance of proclamation

It noted that Section 82 CrPC requires the court to record its reasons for believing that a person against whom a warrant has been issued is absconding and so a proclamation needs to be issued.

In the present case, the Court noted that the Magistrate did not provide any reasons to indicate that the petitioner was absconding. It stated that this order of the Magistrate issuing proclamation was also without application of mind It held their order to be illegal.

It thus quashed the order of the Magistrate dated 14.02.2024

It also set aside the subsequent proceedings including the order dated 31.05.2024, where the petitioner/accused was declared absconder and the order dated 28.06.2024, which issued a warrant of attachment of the petitioner's moveable property.

No bar on granting anticipatory bail

The complainant contended that once NBW is issued against an accused, the court should not consider an application for anticipatory bail. To this, the Court stated that as NBW issued against the petitioner was quashed by it, there was no bar to grant anticipatory bail.

It observed that it is the statutory right of the accused to seek an anticipatory bail and that such a right cannot be disregarded by the investigating officer.

It opined that the petitioner's right to seek anticipatory bail “...cannot be set at naught by the investigating officer by procuring non- bailable warrants against an accused immediately within few days after the registration of a criminal case when the investigation is at a nascent stage and the accused hardly had sufficient time to seek professional advice and apply for pre-arrest bail.”

The Court noted that the notices issued by the IO under Section 41A CrPC were served on the petitioner's mother and the IO hardly gave any time for the petitioner to appear. It remarked that on the same day, the petitioner was supposed to appear (06.02.2024), the IO obtained NBW, raising concerns about the officer's fairness.

The Court thus granted anticipatory bail to the petitioner/accused.

Case title: LAKSHAY JAISWAL vs. STATE (NCT OF DELHI) & ANR.(CRL.M.C.3952/2024, CRL.M.A. 15075/2024 & CRL.M.A. 15076/2024 with BAIL APPLN. 893/2024)

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