Holding

A magistrate may issue a warrant under Section 73 CrPC to arrest an accused of a non‑bailable offence who is evading arrest, even during investigation, and may thereafter authorize police custody under Section 167.

Summary

The case arose from the 1993 bomb blasts in Bombay, after which the CBI took over investigation and sought non‑bailable warrants under Section 73 of the Criminal Procedure Code (CrPC) and Section 8(3)(a) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) to apprehend several absconding accused. The Designated Court rejected the applications, holding that after cognizance a warrant could be issued only to compel trial, not to aid investigation. The Supreme Court examined whether a magistrate could issue a warrant under Section 73 for a person evading arrest during investigation and whether such a warrant could lead to police custody under Section 167. It held that Section 73 is of general application, allowing a magistrate to issue a warrant for a non‑bailable offender who is evading arrest, even during investigation, and that the court may then authorize police custody under Section 167. Consequently, the Designated Court’s order was set aside and the appeals were allowed.

Issues considered

The scope of Section 73 CrPC: can a magistrate issue a warrant for arrest of an accused evading arrest during investigation?
Whether a warrant issued under Section 73 can be used to produce the accused before police for investigative purposes
The relationship between Section 309(2) remand and Section 167 detention after cognizance
The applicability of Section 167 to persons arrested during further investigation

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 204, s. 309(2), s. 70, s. 71, s. 72, s. 73, s. 76, s. 82, s. 90
Delhi Special Police Establishment Act, 1946s. 5
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 8(3)(a)

Subjects

Criminal Procedure CodeSection 73Section 167non‑bailable warrantpolice custodyremandinvestigationbomb blast caseTADACBIappellate jurisdiction

Judgment

A STATE THROUGH CBI
v.
DAWOOD IBRAHIM KASKAR AND ORS.

MAY 7, 1997

B [M.K. MUKHERJEE, G.T. NANAVATI AND B.N. KIRPAL, JJ.)

Oiminal .Law :

Crimi11al Procedure Code, 1973 : Section 167.
c Offe11ce-Cognizance of-Take11 by Court-Accused aTTested by police •
afterwards during fwther i11vestigatio11-Dete11tio11 of accused i11 police cus-
tody-Held : Accused can be detained i11 police custody i11 exercise of court's
power under S. 167.
'
D Section 7:J-A"est-WO/Ta11t-lssuance of-Held : Court <:a11not issue
warrant of an-est solely for production of accused before police i11 aid of
investigation..

Words and Phrases :

E ·~ccused if in custody''-MeaT1ing of-In the colltext of Sectio11 309(2)
of the Criminal Procedure Code, 1973.

The respondents were involved in a series of bomb blasts in and
around the City of Bombay following which raids had been conducted at
their known hideouts to arrest them but none could be apprehended as
F they were deliberately evading their arrest. Thereafter, the State (CBI)
filed applications before the Designated Court for issuance of non-bailable
warrants of arrest against the respondents under Section 73 of the
Criminal Procedure Code, 1973 and Section 8(3)(a) of Terrorist and
Disruptive Activities (Prevention) Act, 1987.
G The Designated Court rejected the application holding 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 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 the Code
·H further investigation was not barred there was no provision therein which
212
STATE v. DAWOODIBRAHIMKASKAR 213

entitled the Investigating Agency to seek for and obtain aid from the Court A
for the same. Hence this appeal.

Allowing the appeal, this Court

HELD : 1.1. There cannot be any manner of doubt that the remand
and the custody referred to in the first proviso to Section 309(2) of the B
Criminal Procedure Code, 1973 are different from detention in custody
under Section 167 of the Code. While remand under the former relates to
a stage after cognizance and can only be to judicial custody, detention
under the latter relates to stage of investigation and can initially be either
in police custody or judicial custody. Since, however, even after cognizance C
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, there is no
reason whatsoever why the provision 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- to mean that
after the Court takes cognizance of an offence it cannot exercise its power D
of detention in police custody under Section 167 of the Code, the loves"
tigating Agency, would be deprived of an opportunity to interrogate a
person arrested during further investigation, even if it can on production
I
. of sufficient materials, convince the Court that his detention in its (police)
custody was essential for that purpose. Therefore, the words "accused if in E
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 F
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. [222-A-F] G
Mohammad Yasin Manswi v. State of Maharashtra, (1994) Cr.LJ.
1854 (Born.), overruled.

1.2. Section 73 of the Code is of general application and that in
course of the investigation a court can issue a warrant in exercise of power H
214 SUPREME COURT REPORTS (1997) SUPP. 1 S.C.R.

A thereunder to appreheod, inter alia, a person who is accused of a non-bail-
·-
able offence and is evading arrest, the related question is as to whether
such issuance of warrant can be for his production before the police in aid
of investigation. It cannot be gainsaid that a Magistrate plays, not infre·
quently, a role during investigation, in that, on the prayer of the Investigat-
B Ing Agency he holds a test identification parade, records the confession
ofan accused or the statement of a witness, or takes or witnesses the taking
of specimen handwritings etc. However, in performing such or similar
functions the Magistrate does not exercise judicial discretion like while
dealing with an accused of a non-bailable offence who is produced before
him pursuant to a warrant of arrest issued under Section 73. On such
C production, the Court may either release him on bail under Section 439 or
authorise his detention in custody (either police or judicial) under Section
167 of the Code. Whether the Magistrate, on being moved by the Inves-
tigating Agency, will entertain its prayer for police custody will be at his 4...-
sole discretion which has to be judicially exercised in accordance with
D Section 167(3) of the Code. Since warrant is and can be issued for ap·
pearance before the Court only and not before the police and since
authorisation for detention in police custody is neither to be given as a
matter of course nor on the mere asking of the police, but only after
exercise of judicial discretion based on materials placed before him, it
cannot be said that warrant of arrest under Section 73 of the Code could
E be issued by the Courts solely for the production of the accused before the
police in aid of investigation. [227-F-H; 228-A·D]

H.N. Risltbud v. State of Delft~ AIR (1955) SC 196 and Ram Lal
Narang v. State, AIR (1979) SC 1791, relied on.
F
Law Commissio11 : 41st report, referred to.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 157-159 of 1997.

G From the Judgment and Order dated 1.8.96 of the Designated Court
for Bomb Blast Cases, Brihan Mumbai in Misc. Applications Nos. 201, 210
and 211 of 1996.

Ashok Desai, Attorney General, Altaf Ahmad, Additional Solicitor
H General, Pallav Shishodia and P. Parmeswaran for the Appellant.
STATE v. DAWOODIBRAHIMKASKAR[M.KMUKHERJEE,J.] 215

Kapil Sibal, (A.C), Ashok Grover, Rajiv Sharma, Adv. (A.C.), T.C. A
Sharma, Ajay Sharma and Ms. Neelam Sharma for the Respondents.

The Judgment of the Court was delivered by
',
M.K. MUKHERJEE, J. The principal question that is required to be
answered in these appeals is when and under what circumstances a Court B
can invoke the provisions of section 73 of the Code of Criminal Procedure,
1973 ('Code' for short). The question arises in this way.

On March 12, 1993 a series of bomb explosions took place in and
around the city of Bombay which resulted in the death of 237 persons, C
injuries to 713 persons and damage to properties worth Rs. 27 crores
(approximately). Over the explosions 27 criminal cases were registered and
on completion of investigation a composite charge-sheet was forwarded to
the Designated Court, Greater Bombay on November 4, 1993 against 198
accused persons, showing 45 of them absconders, for commission of various
offences punishable under the Indian Penal Code, the Terrorist and Dis- D
ruptive Activities (Prevention) Act, 1987 ('TADA' for short), Arms Act,
1959, Explosives Substances Act, 1908 and other Acts. On that charge-
sheet the Designated Court took cognizance and the case registered there-
on was numbered as B.B.C. (Bomb Blast Case) No. 1of1993.
I

A few days thereafter - on November 11, 1993 to be precise - the
E
Government of India, with the consent of the Government of Maharashtra,
issued a notification entrusting further investigation in the above cases to
Delhi Special Police Establishment (CBI) under the provisions of Section
5 of the Delhi Special Police Establishment Act, 1946. Pursuant thereto
CBI registered a case being No. R.C. 1 (5)/93/S.T.F. Bombay on November F
19, 1993 and took up further investigation with permission of the Desig-
nated Court.

In course of such investigation CBI apprehended Mohd. Salim Mira
Moiuddin Shaikh @ Salim Kutta, one of the absconders mentioned in the
charge-sheet, on July 24, 1995. He made a confessional statement before G
Shri S.K. Saikia, Deputy Inspector General of Police, CID, Ahrnedabad,
which was recorded by him on August 18 and 19, 1995 under Section 15
of TADA. In that confession he disclosed that the respondent Nos. 2 to
7 herein (hereinafter referred to as the 'respondents') had taken active part
in the criminal conspiracy which was the subject matter of B.B.C. No. 1 of H
216 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.
L
le=:

A 1993. Thereafter on May 22, 1996, the CBI moved an application before
the Designated Court (Misc. Application No. 201 of 1996) wherein it stated
that following the disclosure of the involvement of the respondents in the
offences in question, raids had been conducted at their known hideouts to
arrest them but none could be apprehended in spite of best efforts as they
B were deliberately evading their arrest to escape the clutches of law and,
accordingly, prayed for issuance of non-bailable warrants of arrest against
them to initiate further proceedings in the matter to apprehend them
and/or to take further action to declare them as proclaimed offenders. Two
other applications (Misc. Application Nos. 210 and 211 of 1996) were
thereafter moved on June 3, 1996 for publication of written proclamations
C under Section 8(3) (a) of TADA as also for issuance of open dated ..
non-bailable warrants of arrest so that 'Red Corner Notices' might be
issued against them. According to CBI such notices are required to be got
issued by INTERPOL to seek police assistance in a foreign country to
locate and apprehend fugitives.
D When the three applications came up for hearing a learned Advocate
who was appearing for some of the persons arraigned in B.B.C. No. 1 of
1993 submitted before the Designated Court that they were entitled to
copies of the applications and a right of hearing on their merits, in the
matter. The Designated Court accepted his submissions; and on receipt of
E the copies of the application the learned Advocate filed a rejoinder thereto.
After hearing the parties the Designated Court, by its order dated August
1, 1996, rejected the applications. The above order is under challenge in
these appeals preferred at the instance of CBI.

From the impugned order we find that before the Designated Court
F it was submitted on behalf of CBI that since it was making further inves-
tigation into the offences in respect of which chargesheet had earlier been
submitted and since the presence of the respondents, who were abscond-
ing, was absolutely necessary for ascertainment of their roles, if any, in
commission of the offences, it was felt necessary to file the applications. It
G 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
measures to compel them to appear before the Investigating-Agency for
the purpose of intended further investigation. According to CBI under
Section 73 of the Code and Section 8(3)(a) of TADA the Designated Court
H was fully empowered to issue warrants of arrest and proclamations. In
STAIB v. DAWOODIBRAHIMKASKAR[M.KMUKHERJEE,J.] 217

rejecting the above contentions the Designated Court held that after cog- A
-· nizance 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 the
Code further investigation was not barred there was no provision therein B
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 Desig-
nated Court relying solely upon the judgment of the Bombay High Court
in Mohammad Yasin Mansuri v. State of Maharashtra, (1994) Crl.L.J. 1854,
it will be necessary to refer to the same in some details. In that case C
investigation into an offence of murder and other related offences was
taken up initially by the Officer-in-~harge of Byculla Police Station and
thereafter by a Deputy Commissioner of Police (DCP) of C.I.D. 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 D
those offences. Thereafter a charge-sheet came to be filed against several
accused, some of whom were before the Court and some others including
Mansuri (the petitioner before the High Court) were shown as absconding.
On the very day the charge-sheet was filed Designated Court took cog-
nizance of the offences mentioned therein. Few months later Mansuri came
to be arrested by the CBI, Delhi in connection with some other offence. _ E
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 F
prosecution prayed for remand of Mansuri to police custody. The prayer
was 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 G
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 H
218 SUPREME COURT REPORTS (1997] SUPP. 1 S.C.R.

A 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 a 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
B 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
c of a process issued under Section 204 of the Code of Criminal
Procedure, Issue of wa"ants 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, investiga-
D
tion. The process contemplated is a process to face trial."

(emphasis supplied)

The High Court further observed :
E
"We are conscious that the view we are taking is likely, in certain
cases such as the present one, to hamper investigation. However,
this is not a matter for us. We have construed the provisions of tlte
Code and have found that no power is confe"ed for providing for
police custody after cognizance of an offence is taken."
F
(emphasis supplied)

In view of the provisions 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
G police and their powers to investigate. Under Section 154 thereof whenever
an Officer-in-Charge of a police station receives an 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
H investigate into cognizable offences without the order of a Magistrate and
STATE v. DAWOODIBRAIIlMKASKAR(M.KMUKHERJEE,J.) 219

-· Section 157 lays down the procedure for such investigation. In respect of A
an information given of the commission of a non-cognizable offence, the
Officer-in-Charge is 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 powers of B
investigation he has in respect of a cognizable offence except that he cannot
arrest without a warrant. The manner in which a person arrested during
investigation has to be dealt with by the Investigating Agency, and by the
Magistrate on his production before him, is provided is 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 C
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 exceed-
ing 15 days either in police custody, or in judicial custody. On expiry of the D
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-sec-
tion (i) of Section 173 the Officer-in-Charge is to complete the investigation E
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 infor-
mation and the names of the persons who appears to be acquainted with
the circumstances of the case. Sub-Section (8) entitles the Officer-in- F
Charge to make 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-sec-
tion (2) has been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the police station obtains G
further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in
the form prescribed, and the provisions of sub-section (2) to (6)
shall, as far as may be, apply in n:lation to such report or reports
as they apply in relation to a report forwarded under sub-section H
220 SUPREME COURT REPORTS [1997] SUPP. l S.C.R.

A (2)." •
InH.N. Rishbud v. State of Delhi, AIR (1955) SC 196, this Court dealt
with the definition of 'investigation' under the Code of Criminal Procedure,
1898 (hereinafter referred to as the 'old Code'), which is same under the
new Code and after analysing the provisions of Chapter XIV of that Code
B (which corresponds to Chapter XII of the Code) stated :

"Thus under the Code investigation consists generally of the fol-
lowing steps : (1) Proceeding to the spot, (2) Ascertainment of the
facts and circumstances of the case, (3) Discovery and arrest of
c the suspected offender, (4) Collection of evidence relating to the
commission of the offence which may consist of (a) the examination
of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit, (b) the search
of places or seizure of things considered necessary for the inves-
tigation and to be produced at the trial, and (5) Formation of the
D opinion as to whether on the material collected there is a case to
place the accused before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a charge-sheet under
Section 173."

E Though under the old Code there was no express provision - like
sub-section (8) of Section 173 of the Code - statutorily empowering the
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 v. State ,
AIR (1979) SC 1791. In exemplifying the situations which may prevail upon
F 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
G absolve persons already accused. When it comes to the notice of
the investigating agency that a person already accused of an of-
fence 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
H at its command than a private individual. Similarly, where the
STATE v. DAWOOD IBRAHIM KASKAR [M.K MUKHERJEE,J.] 221

involvement of persons who are not already accused comes to the A
notice of the investigating agency, the investigating agency cannot
keep quite 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 B
upon the stage at which the case i~ before him. If he has already
taken cognizance of the offence, but has 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 or trial. If the case of which he has previously
taken cognizance has already proceeded to some extent, he may C
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
a matter best left to the discretion of the Magistrate." D
In keeping with the provisions of Section 173(8) and the above
quoted observations, it has now to be seen whether Section 309(2) of the
Code stands in the way of a Court, which has taken cognizance of an
offence, to authorise detention of a person, who is subsequently brought
before it by the police under arrest during further investigation, in police E
custody in exercise of its power under Section 167 of the Code. Section 309
relates to the power of the Court to postpone the commencement of or
adjournment of any inquiry or trial and sub-section (2) thereof reads as
follows:

"If the Court, after taking cognizance of an offence, or commen- F
cement of trial, finds it necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or trial, it may, from
time to time, for reasons to be recorded, postpone or adjourn the
same on such terms as it considers reasonable, and may be a
warrant remand the accused if in custody. G
Provided that no Magistrate shall remand an accused person to
· custody under this Section for a term exceeding fifteen days at a
time; 11

xxx xxx xxx xxx H
222 SUPREME COURT REPORTS (1997] SUPP. 1 S.C.R.
A xxx xxx xxx xxx

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 dif-
ferent from detention in custody under Section 167. While remand under
B 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
C 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 bythe Bombay High Court in Mansuri
t
(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 /
D 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
E 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
F 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.

The moot question that now requires to be answered is whether a
G 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
H amicus curie (the respondents did not appear inspite of publication of
STATE v. DAWOODIBRAHIMKASKAR[M.KMUKHERJEE,J.) 223

notice in newspaper) submitted that Court had no such power. To ap- A
preciate the steps of reasoning of the learned counsel for their respective
stands it will be necessary to refer to the relevant provisions of the Code
and TADA relating to issuance of processes.

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 B
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
speak~ of the form in which the warrant to arrest a person is to be issued
by the Court and of its durational validity. Sections 71 empowers the Court C
issuing the warrant to direct the officer who is to execute the warrant, to
release that person on terms and conditions as provided therein. Section
72 provides that a warrant shall ordinarily be directed to one or more
police officers but if its immediate execution is necessary and no police
officer is immediately available it may be directed to any other person for
execution. Section 73, which is required to be interpreted in these appeals, D
reads as u.'1der :

"73(1) The Chief Judicial Magistrate or a Magistrate of the first
class may direct a warrant to any person within his local jurisdiction
for the arrest of any escaped convict, proclaimed offender or of E
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 enters on, any land on other property under his F
charge."

Section 76 requires the police officer or other person, who executes
the warrant to bring the person arrested before the Court (unless he is
released in terms of Section 71), within twenty four hours.
G
Section 82, appearing in part C empowers the Court to issue
. proclamation; and so far as it is relevant for our present purposes, reads
· as under:

"82(1) If any Court has reason to believe (whether after taking H
224 SUPREMECOURTREPORTS [1997]SUPP.1S.C.R.

A evidence or not) that any person against whom a warrant has been
issued by it has absconded or is concealing himself so that such
warrant cannot be executed, such Court may publish a written
proclamation requiring him to appear at a specified place and at
a specified time not less than thirty days from the date of publishing
such proclamation.
B
(emphasis supplied)

xxx xxx xxx xxx

(2) xx x xxx xxx xxx
c
(3) xx x xxx xxx XX XII

After issuing a proclamation in terms of the above provision, the Court
may also order attachment of the property of the proclaimed person under
Section 83; and even deprive him of such property if he does not appear
.D within the time prescribed under Section 85.

Chapter XVI relates to commencement of proceedings before
Magistrates and Section 204 appearing therein enables a Magistrate, who
takes cognizance of an offence, to issue process (summons/warrant) against
E the accused if he finds sufficient grounds to proceed against him.

Coming now to the relevant provisions of TADA we may first refer
to sub-section (3) of Section 8 relating to proclamation for the attachment
of the property of a person accused of an offence punishable under TADA.
Clause (a) of the above sub-section lays down that if upon a report in
F writing made by a police officer or an officer referred to in sub-section
(1) of Section 7, any Designated Court has reason to believe that any
person, who has committed an offence punishable under the Act or any
rule made thereunder, has absconded or is concealing himself so that he
may not be apprehended, such Court may, notwithstanding anything con-
G tained in Section 82 of the Code, publish a written proclamation requiring
him to appear at a specified place and at a specified time not less than
fifteen days but not more than thirty days from the date of publication of
such proclamation; and sub-section (3)(b) thereof entitles the Court issuing
the proclamation to order attachment of property belonging to the
H proclaimed offender and then proceed in accordance with Section 83 to 85
STATE v. DAWOODIBRAHIMKASKAR[M.KMUKHERJEE,J.) 225

of the Code. For all intents and purposes, therefore, sub-section 8(3) of A ,
TADA seeks to achieve the same object as part C of Chapter VI does,
namely to compel appearance of the accused. The other Section to which
reference need be made is Section 20 which makes the provisions of the
Code applicable to the proceedings under TADA, subject to the modifica-
tion envisaged therein. B

The contention of Mr. Desai was that though in exercise of its power
under Section 41 of the Code a police officer may without an order from
a Magistrate and without a warrant arrest a person who is concerned in
any cognizable offence or against whom a reasonable complaint has been
made, or a credible information has been received or a reasonable c
suspicion exists, of his having been so concerned, under the Code the
police has no power of its own to compel his appearance if he evades the
arrest. It is in that context, Mr. Desai argued, that the Court has been given
. the power under Section 73 to issue warrant of arrest for apprehension of
such a person; and, thereafter, if need be, to issue proclamation and pass D
order for attachment of his properties. In joining issue, Mr. Sibal urged
that the scheme of the Code is that the police has complete control of the
investigation and is not aided by any judicial authority. Once the investiga-
tion culminates in the police report under Section 173(2) that the Court
steps in by taking cognizance thereupon and issuing summons or warrant E ;
under Section 204 against the person arraigned. According to Mr. Sibal, in
the scheme of the Code it is unthinkable that the police, while investigating
under Chapter XII is entitled to seek the help of a Magistrate for the
purposes of issuance of a warrant of arrest in aid of investigation. As
regards Section 73, Mr. Sibal's argument was that in the scheme of part B
F
of Chapter VI that section only lays down a procedure to enable a Court
to execute a warrant already issued under Section 204 but does not confer
any right to issue a warrant, much less during investigation.

At this stage it is pertinent to mention that under the old Code the
corresponding provision was Section 78; and while recommending its G
amendment the Law Commission in its 4lst report stated, inter alia :

"6.8 Section 78 at present conjers a power on the District Magistrate
or Sub-Divisional Magistrate to issue a special type of "warrant to
..
a land-holder, farmer or manager of land within the district of H
126 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A sub-division for the arrest of an escaped convict, proclaimed of- ·
fender or person who has been accused of a non-bailable offence
and who has eluded pursuit". Although the power is infrequently
exercised, there appears to be no objection to conferring it on all
Magistrates of the first class and all............."
B (emphasis supplied)

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
C 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 Section of part 'B' of Chapter VI including Section
D 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

E
as it relates to the initiation of the proceeding and not to a stage after a
person has been convicted on conclusion thereof.

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
F 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
G Code) and if during investigation the Investigating Officer intends to arrest
the perso:q 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
H thereafter those relating to proclamation and attachment. In such an
STATE v. DAWOOD IBRAHIM KASKAR [M.K MUKHEIUEE, J.) 227

eventuality, the Magistrate can legitimately exercise his powers under A
Section 73, for the persor1 to be apprehended is 'accused of a non-bailable
offence and is evading arrest.'

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 B
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 exer-
cised by a Court only in respect of a person 'against whom a warrant has C
been issued by it'. In other words, unless the Court issues a warrant tile
provisions of Section 82, and the other Sections that follow in that part,
cannot be invoked in a situation where inspite of its best efforts 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 D
the Court to issue warrant of arrest under Section 73; and if need be to
invoke the provisions of part 'C' of Chapter VI. [(Section 8 (3) in case the
person is accused of an offence under TADA)).

Lastly, we may refer to Section 90, which appears in part 'D~ of
Chapter VI of the Code and expressly states that the provisions contained E
in the Chapter relating to a summon and warrant, and their issue, service
and execution shall, so far as may be, apply to every summons and every
warrants of arrest issued under the Code. Therefore, when a Court issues
a warrant of arrest, say under Section 155 of the Code, any steps that it
may have to subsequently take relating to that warrant of arrest can only F
be under Chapter VI.

Now that we have found that Section 73 of the Code is of general
application and that in course of the investigation a Court can issue a
warrant in exercise of power thereunder to apprehend, inter alia, a person G
who is accused of a non-bailable offence and is evading arrest, we need
answer the related question as to whether such issuance of warrant can be
for his production before the police in aid of investigation. It cannot be
gainsaid that a Magistrate plays, not infrequently, a role during investiga-
tion, in that, on the prayer of the Investigating Agency he holds a test
identification parade, records the confession of an accused or the state- H
228 SUPREME COURT REPORTS (1997) SUPP. 1 S.C.R.

A ment of a witness, or takes or witnesses the taking of specimen handwrit-
ings etc. However, in performing such or similar functions the Magistrate
does not exercise judicial discretion like while dealing with an accused of
a non-bailable offence who is produced before him pursuant to a warrant
of arrest issued under Section 73. On such production, the Court may
B either release him on bail under Section 439 or authorise his detention in
custody (either police or judicial) under Section 167 of the Code. Whether
the Magistrate, on being moved by the Investigating Agency, will entertain
its prayer for police custody will be at his sole discretion which has to be
judicially exercised in accordance with Section 167(3) of the Code. Since
warrant is and can be issued for appearance before the Court only and not
C before the police and since authorisation for detention in police custody is
neither to be given as a matter of course nor on the mere asking of the
police, but only after exercise of judicial discretion based on materials
placed before him, Mr. Desai was not absolutely right in his submission
that warrant of arrest under Section 73 of the Code could be issued by the
D Courts solely for the production of the accused before the police in aid of
investigafa.1n.

On the conclusions as above we allow these appeals, set aside the
impugned order and direct the Designated Court to dispose of the three
miscellaneous applications filed by C.B.I. in accordance with law and in
E the light of the observations made herein before.

Before parting with this judgment we place on record our deep
appreciation for the valuable assistance rendered by Mr. Desai and Mr.
Sibal in deciding the issues involved in these appeals. ,;

v.s.s. Appeals allowed.