STATE Vs. A.SIVAKUMAR

JUDGEMENT

(1.) The Criminal Original Petition has been filed to set aside the order passed by the learned Metropolitan Magistrate, Special Trial Court for CCB and CBCID, Egmore, Chennai dismissing the petition to issue Non-Bailable Warrants and issue a direction to the learned Metropolitan Magistrate, Special Trial Court for CCB and CBCID, Egmore, Chennai to issue a Non-Bailable Warrant arrest against the absconding accused A5/Sivakumar, A6/Pandiyarajan and A10/Saravanan.

(2.) Learned Additional Public Prosecutor appearing for the petitioner would submit that the petitioner is the Deputy Superintendent of Police, Metro Wing - I, Crime Branch CID, Egmore, Chennai. Based on the complaint given by one R.Rajesh a case in Crime No.4 of 2021 was registered by the CBCID, Metro for the offences under Ss. 147, 323, 347, 384 and 420 of IPC which was, later, altered to Ss. 147, 323, 347, 384 and 420 of IPC and Sec. 4 of Tamil Nadu Prohibition of Harassment of Women Act. The case has been registered against one Tharun Krishna Prasad and 9 others. It is a case where the accused along with the certain police officials including the respondents kidnapped the de facto complainant and under threat, the main accused with the help of certain Police officials had committed grave offence of extortion and illegally transferred the property belonging to the defacto complainant. The petitioner has so far arrested 5 accused in this case. The Police officials, against whom there are serious offences are still evading arrest despite earnest steps taken by the petitioner to bring the accused for investigation. Despite issuance of notice under Sec. 41(a) Cr.P.C, the respondents have not complied with the same, whereas the respondents have instigated their family members to file a complaint against the Officer before the Human Rights Commission. The respondents, who belong to uniform service, was supposed to obey the Law are evading investigation and thereby, the petitioner had filed an Application before the learned Special Judge seeking to issue Non-Bailable Warrant of arrest under Sec. 73 of Cr.P.C. He would further submit that Sec. 73 of Cr.P.C. confers the power upon the Magistrate to issue warrant and it can be exercised by him during the stage of investigation also, whereas the learned Magistrate, without properly understanding the provisions, by a cryptic order, returned the Application even without numbering the same. He would further submit that if an accused evades arrest the only course left to the Investigating Officer to ensure his presence would be to seek the learned Magistrate to invoke his power under Sec. 73 of Cr.P.C. and only thereafter, the Investigating Officer can proceed further relating to proclamation and attachment. He would also submit that the Magistrate is empowered to legitimately exercise his powers under Sec. 73 of Cr.P.C. for the apprehension of the accused during investigation and in this case, the respondents are facing charges for offences of cognizable in nature which are Non-Bailable. In support of his contention, the learned Additional Public Prosecutor would rely upon a Three Judges bench judgment of the Hon'ble Apex Court in State through CBI Vs. Dawood Ibrahim Kaskar and others reported in 2000(10) SCC 43.

(3.) Heard the learned Additional Public Prosecutor and perused the materials available on records.