Police officer has all pervasive powers to arrest a person during investigation, without any assistance from Magistrate or Court
Gurjeet Singh Johar Vs State of Punjab and another
Punjab and Haryana HC
CRM-M No.47872 of 2019 (O&M)
About/from the judgment:
The High Court addressed the petition filed under Sections 482 and 483 of CrPC for quashing of FIR registered under Sections 406, 420 & 120-B Penal Code, 1860 and the orders whereby the warrants of arrest were issued against the petitioner.
Petitioner’s counsel submitted that the petitioner has instructed him to restrict the petition only qua challenge to the warrants issued by the Magistrate against the petitioner in the said FIR. Adding to his contentions, counsel for the petitioner stated that the Magistrate had issued warrants in a mechanical manner.
Magistrate had no reason to exercise his discretion to decide whether the petitioner was evading his arrest or not. The exercise of discretion by the Magistrate stands vitiated, being in the negation of law as is laid down by the Supreme Court in State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438.
He further stated that since, the police had not disclosed any reason even in their application, therefore, the arrest of the petitioner would be in violation of the provisions of Section 41(1)(b)(ii) of CrPC. If the Magistrate could not have authorized police custody, due to absence of valid reasons then the Magistrate could not have been issued warrant authorizing arrest of the petitioner.
Respondent’s counsel stated that the petitioner is involved in a heinous crime of huge fraud. Since the police was unable to arrest the petitioner despite repeated attempts and the raids at the known addresses of the petitioner, therefore, the investigating officer had rightly applied for the arrest warrant against the petitioner.
Further, he stated that, Magistrate is not required to record any reasons for issuing warrants of arrest against an accused. Hence, the Magistrate has not committed any illegality.
Court’s Analysis & Decision
On a bare perusal of the provisions of CrPC, the Court stated that the police officer has almost omnipresent power to arrest. He can arrest a person even on having a suspicion that such person has committed a cognizable offence.
Adding to the above point, the Court stated that, in certain circumstances, the police officer is required to record reasons for arresting a person or is required to have a satisfaction qua the necessity of arrest, however, all these requirements are intrinsic to the arresting officer.
Thus for the purpose of arresting police officer has all-pervasive powers without any assistance from the Court or Magistrate.
Limiting factors for the above said the power of arrest without warrant is the existence of some reasons for the exercise of such power.
Chapter XII of CrPC which deals with Investigation of Crime also does not contemplate any assistance of a Magistrate or a court; to the police officer, qua investigation of a crime.
Section 167 CrPC requires that after arrest if investigation is not conducted within 24 hours then the person shall be produced before the Magistrate. Even the Magistrate is prohibited from permitting police custody for more than 15 days in all.
Section 73 of CrPC confers a power upon the Chief Judicial Magistrate and a Magistrate of First Class to issue warrants against any person who is ‘evading arrest’.
Under the above-said Section, the Magistrate can issue warrants of arrest against a person:-
(a) Who is an escaped convict
(b) Proclaimed offender
(c) Person accused of ‘non-bailable’ offence and is ‘evading arrest’.
High Court noting the above observations along with the contentions of both the counsels for the parties found the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, to be befitting in the facts of the present case, in the cited case following was held by the Supreme Court,
“…before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section.”
“…even at the time of authorizing detention of a person, who has already been arrested by the police, Magistrate would not go by ipse dixit of the language, which might be reproduced in the record of the police. He has to apply his independent mind as to whether the reasons are sufficient to sustain the satisfaction qua requirements of getting such person arrested. Only if the reasons are found sufficient, the person arrested by the police can be authorized to be put in further custody of the arresting officer.”
High Court also observed and stated that, before the Magistrate had taken cognizance of any offence, power of issuance of arrest warrants under any provision of CrPC, on an application of a police officer, cannot be invoked by the Magistrate as a routine manner.
It is clear from the above-said analysis that,
“only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest.”
Thus, the application moved by the police officer is silent qua any reason, which requires assistance from the court for arresting the petitioner.
No reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 CrPC, to justify the arrest of the petitioner, except to say that the petitioner is evading arrest. It is upon this application that the impugned warrants of arrest have been issued against the petitioner.
Hence, nothing has been noted either in the order passed by the Magistrate, from which it can be discernible that the Magistrate has some reasons or material to justify the discretion exercised by him.
Court found the impugned warrant issued by the magistrate not sustainable. Hence the present petition is found to be partly allowed by quashing the warrants of arrest and consequent order impugned in the petition.
Read the Judgment
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