MRIGENDRA JALAN Vs. STATE

JUDGEMENT

(1.) BY way of this petition under Section 482 Cr. P. C. the petitioner seeks quashing of the orders dated 7. 2. 2008 and 4. 4. 2008 whereby the learned metropolitan Magistrate issued Non-bailable warrants and also commenced the proceedings under Section 82 Cr. P. C. against the petitioner.

(2.) COUNSEL appearing for the petitioner submits that the court has yet to take the cognizance of the said offence and the matter is still at the investigation stage. Counsel for the petitioner has drawn my attention to the ordersheet dated 3. 5. 2008 and 16. 7. 2008 to contend that the said orders would show that the matter is still at the stage of investigation. Contention of the counsel for the petitioner is that the respondent had filed a complaint under section 156 (3) Cr. P. C. on which the learned Metropolitan Magistrate has directed registration of an FIR and pursuant thereto the matter was still pending at the stage of investigation. Counsel thus urged that at the stage of investigation, the Magistrate has no role to pass any order including that of directing NBWs or proceedings under Section 82 Cr. P. C. unless the Magistrate has taken a prima facie view that the offence as alleged in the complaint has been committed by the petitioner. Counsel for the petitioner has placed reliance on a judgment of the Apex Court reported in (2000) 10 SCC 438 entitled State through CBI Vs. Dawood Ibrahim Kaskar and others. Counsel for the petitioner has invited my attention to paras 18 and 24 of the said judgment to contend that it is only after the culmination of the investigation that the role of the magistrate would start and not prior thereto. The contention of the petitioner is that at this stage of investigation the Magistrate has no power to direct the arrest of the petitioner or issue NBWs in the aid of investigation and at that stage the remedy lies with the police under Section 41 of the Cr. P. C. Refuting the said submissions made by the counsel for the petitioner Mr. Pawan Sharma, APP for the state avers that complete mechanism right from Section 73 to Section 83 has been provided in the Criminal Procedure code and the Magistrate concerned is fully empowered to secure the presence of the accused who is avoiding his arrest. Learned Addl. P. P. has also placed reliance on the same judgment especially para 22 of the same. He has also placed reliance on the Division Bench judgment reported in 75 (1998) DLT 97 (DB) entitled Ottavio Quattrocchi Vs. Central Bureau of Investigation. Mr. Sharma for the state also submits that the petitioner has earlier sought anticipatory bail, which was dismissed as withdrawn. However, this submission of the Addl. P. P. is disputed by the counsel for the petitioner. Counsel for the petitioner disputes the very filing of the application of anticipatory bail by the petitioner. Additional P. P. for the state further submits that the concerned Magistrate has taken a decision on the application moved by the police seeking NBWs against the petitioner after he evaded his arrest and after due satisfaction Magistrate passed the said order directing NBWs.

(3.) MR. Vijay Aggarwal who appears for respondent No. 2 submits that magistrate has role to play even during the investigation under Section 156 (3)Cr. P. C. and in support of his submissions he has placed reliance on the judgment in Sakiri Vasu Vs. State of U. P. and Ors. reported in 1007 AIOL 1861 Mr. Aggarwal further submits that prima facie view will be taken by the Magistrate at the time of taking the cognizance and not prior to it.