MAHENDRA SINGH RANA @ BATU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard Mr. B. K. Sharma, learned counsel for the petitioner and Mr. Deepak Kumar, learned Additional Standing Counsel for the State.

(2.) This is an application under section 482 of Cr.P.C. filed by the petitioner challenging the order dated 05.04.2005 passed by the learned J.M.F.C., Barbil in G.R. Case No. 106 of 2005 in issuing non-bailable warrant of arrest against the petitioner on the application filed by the investigating officer. The said case arises out of Joda P.S. Case No.61 of 2005. On perusal of the application dated 03.04.2005 filed by the S.I. of Police, Joda Police Station in connection with Joda P.S. Case No. 61 dated 14.03.2005 under sections 379/411/34 of the Indian Penal Code and section 12 of the Orissa Mineral (Prevention of Theft, Smuggling and other Unlawful Activities) Act, 1988, it appears that during course of investigation, it was ascertained that the petitioner is the owner of a Tipper bearing Registration No. OR-09C-0462 and he conspired with the other co-accused persons in committing the theft of manganese ore from the lease area of TISCO mines and in spite of efforts, the petitioner could not be arrested and he was avoiding police arrest and his whereabouts was not known and the investigation of the case was complete except the arrest of the petitioner. Basing on such application filed by the S.I. of Police, Joda Police Station, the non-bailable warrant of arrest was issued. Section 73 of Cr.P.C. empowers the Chief Judicial Magistrate or a First Class Magistrate to issue warrant to any person for the arrest of following person within his local jurisdiction:-

(3.) In the present case (i) and (ii) are not applicable. So far as (iii) is concerned, since the investigation was under progress, materials should have been placed before the learned Magistrate to his satisfaction that the petitioner who is an accused of a non-bailable offence is evading arrest. Only after being satisfied on the materials produced before him, the Magistrate could have directed for issuance of non-bailable warrant of arrest.