NARESH KUMAR JAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON the prayer of the Investigating Officer on 12.10.1998, learned S.D.J.M: passed the impugned order directing issue of N.B.W.A., proclamation as provided in Section 82 of the' Code of Criminal procedure, 1973 (in short 'the Code') and also order of attachment under Section 83 of the Code which is under challenge in this application under Section 482 of the Code filed by one of the accused -cum -alleged absconder in G.R. Case No. 320 of 1997 of the Court of S.D.J.M. Titilagarh.

(2.) FACTS which are not in dispute is that on 20. 12. 1997 F.I.R., Annexure -1 was lodged by the steno to Sub -Collector, Titilagarh, regarding riotous conduct of the miscreants in entering into the office of the Sub Collector and ranting and ransacking the whole office and in the process damaging and removing the public properties like official file, furniture and typewriters etc. besides endangering human life and property in that process. Accordingly, Titilagarh P.S. Case No. 130 of 1997 was registered for the alleged offences under Sections 147,336,454,427,380,353,506. 149 I.P.C., Section 7 Criminal Law (Amendment) Act and Section 54 Prevention of Damage to Public Property Act, 1984. During the course 01 investigation the Investigating Officer filed an application to issue non -bailable warrant of arrest against six absconding accused persons. Petitioner was described as one of such absconding accused persons. Prayer was also made to issue proclamation for persons absconding and also for attachment of their property in accordance with the provisions under Sections 82 and 83 of the Code respectively. Learned S.D.J.M. on 12.10.1998, vide the impugned order, allowed the prayer of the Investigating Officer and the Petitioner challenges legality of that order.

(3.) MR . D.P. Dhal, learned Counsel arguing for the Petitioner at first contended that, it was not within the domain of learned S.D.J.M. to issue non -bailable warrant of arrest by exercising the power under Section 73 of the Code when the investigation was still under process and progress and in that respect heavily relied on certain observation recorded by a Division Bench of Bombay High Court in the case of Mohamad Ahmed Yasin Mansuri v. State of Maharashtra etc. : 1994 CRI L.J. 1854. However, at a later stage he fairly conceded that in view of the ratio in the case of State through C.B.I. v. Dagwood Ibrahim Kaskar and Ors: : (2000) 18 (SC) 668; 1997 Cri. LJ 2989 warrant of arrest under Section 73 of the Code can be issued by the Magistrate during pendency of investigation. Hence no further deliberation is necessary to decide the said question of law.