Dismissed

Praksh Rasiklal Dhariwal v. Central Bureau of Investigaion and Anr.

Bombay HC22 Feb 2005WP/421/2005

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed a criminal writ petition contesting the issuance of a non-bailable warrant against the petitioner's father under Section 73 of Cr.P.C. The Court held that the Magistrate had jurisdiction to issue the warrant to secure the respondent's presence for investigation before a charge-sheet was filed, rejecting the claim that the person was not an accused.

What did the court decide?

Petition dismissed; Rule discharged with no order as to costs; Prayer for stay of order and warrant rejected.

Praksh Rasiklal Dhariwal Vs Central Bureau of Investigaion… — Money Laundering | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.421 OF 2005

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 Prakash Rasiklal Dhariwal )
 age 40, residing at 100/101, )
 D.Kennedy Raod, )
 Manikchand House, Pune-1. )..Petitioner

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 Versus

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 1. Central Bureau of Investigation )
 New Delhi. )

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 2. The State of Maharashtra )
 (D.C.B.,C.I.D., Mumbai) )..Respondents

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 Sarvashri Adhik Shirodkar, Senior Counsel with Rajendra
 Shirodhkar for the Petitioner,

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 Sarvashri Shekhar Naphade, Senior Counsel with Ms
 Akhila Kaushik, D.S.Mhaispurkar, APP and B.H.Mehta, APP
 for the State

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 Sarvashri Raja Thakare with Ejaz Khan and A.M.Chimalkar
 for the C.B.I.

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 CORAM : R.M.S.KHANDEPARKER &

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 P.V.KAKADE, JJ.

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 DATE : 22ND FEBRUARY, 2005.

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 ORAL JUDGMENT : ( Per Khandeparkar, J.)

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 1. We have heard at length the learned advocates
 for the parties.

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 2. Rule. By consent the rule is made returnable

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 forthwith.

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 3. The Petitioner challenges the Warrant issued
 against his father Rasiklal Dhariwal being without
 jurisdiction as also the Order passed by the Court below
 in MCOC Special Case No.1/2005 directing issuance of
 warrant to be bad in law and without jurisdiction.

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 4. Few facts which are relevant for the decision in
 the matter are that the L.A.C. Case under Sections, 3,
 7 & 25 of the Arms Act came to be registered against one
 Jamruddin on 27.9.2004. Consequently, C.R.No.122 of
 2004 was registered against the said Jamruddin and three
 others. Jamruddin was came to be arrested on 10.10.2004
 followed by another accused viz. Rajesh. The
 interrogation of the said accused allegedly revealed
 involvement of Shri Rasiklal Dhariwal, hereinafter
 referred to as "Rasiklal" as well as Petitioner in
 another Writ Petition No.386 of 2005 namely Shri Jagdish
 M. Joshi, hereinafter referred to as "Joshi" in the
 offence. The provisions of MCOC Act were applied to the
 matter and Jamruddin and Rajesh were remanded to the
 custody in MCOC case on 23.10.2004. Further, the
 statement of witness recorded under Section 161 as well
 under Section 164 of Cr.P.C. revealed involvement of

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 both, Rasiklal and Joshi, in the said offence. The
 investigation proceeded further and in the course of the
 investigation, the confessional statement of one of the
 accused came to be recorded on 6th and 8th November,
 2004. While it is the contention of Joshi that he left
 India after obtaining necessary permission from the
 Court in August 2004, it is the contention of the
 respondents that he left India on 4th October, 2004.
 There is no dispute that Rasiklal left India on 12th
 October, 2004.

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 5. The letter dated 2.12.2004 came to be issued by
 the Investigating Officer to the Petitioner asking him
 to appear before him in relation to the investigation
 pertaining to the case bearing C.R. No.122 of 2004
 registered under Section 120(b) r/w 384, 387 and 34 of
 Indian Penal Code r/w 3, 25 of MCOC Act. In answer to
 the said call letter Rasiklal informed about his NRI’s
 status and requirement of his stay for minimum period of
 182 days in a year outside India and his arrival before
 the expiry of the said minimum period would cause him
 business loss to a great extent and that therefore he
 should be allowed to appear before the Investigating
 Agency only after the required period of stay outside
 India is over. With reference to the said letter, the

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 respondents informed Rasiklal by the letter dated
 27.12.2004 that he was required to attend the office at
 once and to cooperate with the investigating agency to
 unfold the true facts of the case. The letter disclosed
 the subject to be the investigation in DCB. CID. CR.
 NO.122/04 u/Sec.384, 387, 34 IPC r/w 120(b), IPC r/w, 3,
 25A of Act r/w M.C.O.C. Act, 1999. The same was
 followed by an application dated 30th December, 2004
 before the Special Court, at Mumbai requesting for an
 order of non-bailable warrant against Rasiklal and
 Joshi. The same was allowed on 31.12.2004 directing
 issuance of non-bailable warrant as prayed for. On
 6.1.2005 Rasiklal again wrote a letter to the
 Commissioner of Police, Mumbai requesting him to
 accommodate him and to allow him to stay out of India to
 enable him to continue his NRI status. The same was
 followed by yet another letter dated 15.1.2005 wherein
 it was informed that he had practical difficulty in
 coming to India before the end of financial year and if
 the investigation agency cannot wait till then for his
 interrogation, then there could be video conferencing
 and if necessary he would provide two return air tickets
 for the investigating officers along with other
 facilities as may be desired by the investigating agency
 in order to enable them to go to Dubai for his

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 interrogation. Meanwhile the cahrgesheet in MCOC
 Special Case No.1 of 2005 came to be filed against four
 persons. In the said MCOC case an application came to
 be filed on behalf of Rasiklal asking for a copy of the
 charge-sheet. The same was objected to by the learned
 Prosecutor and the Court below after hearing the parties
 rejected the said application by its order dated
 27.1.2005. Meanwhile the non bailable warrant came to
 be issued in terms of order dated 31.12.2004. Rasiklal
 as well as Joshi filed applications before the Special
 Court constituted under MCOC Act being Application
 Nos.57 of 2005 and 26 of 2005 respectively in MCOC Case
 No.1/05 requesting for cancellation of the non-bailable
 warrant issued against them. After hearing the parties,
 the said applications were dismissed by the order dated
 1.2.2005. Consequently the present Petition came to be
 filed along with another Writ Petition by Joshi.

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 6. While challenging the action on the part of the
 Respondents in obtaining the non-bailable warrant
 against Rasiklal, it is sought to be contended that not
 even an FIR is registered against Rasiklal nor his name
 is disclosed in the charge-sheet filed in Special Case
 No.1/2005. It is the contention of the petitioner that
 even though there is no bar for the investigating agency

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 to investigate into the matter even after filing of the
 charge-sheet, the courts have no jurisdiction to issue

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 warrant of arrest against the person who is not
 disclosed as an accused in the case and certainly not
 for the purpose of the appearance of such person before
 the Investigating Agency in aid of investigation. The
 provision of law comprised under Section 73 of Cr.P.C.
 merely empowers the court to issue warrant for the
 purpose of appearance of the person before the court and
 that too, in case of three classes of persons specified
 thereunder. According to the learned advocate for the
 petitioner, the intimation given to Rasiklal was to the
 effect that he was acquainted with the facts of the case
 and therefore, his presence was required before the
 investigating officer in the matter of investigation of
 the case and being so, a person who is merely required
 to appear before the police in exercise of powers under
 Section 160 of Cr.P.C. cannot be subjected to forcible
 appearance before the investigating agency with the aid
 of the Court. Reliance is sought to be placed in the
 decision of the Apex Court in State through CBI vs.

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Dawood Ibrahim Kaskar and Ors. reported in (2000) 10
 SCC 348 and Kishori Skingh and Ors. Vs. State of Bihar

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and Anr. reported in AIR 2000 SCC 3725 as well as
 decision of the learned Single Judge of the Delhi High

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 Court in Washeshar Nath Chadha vs. The State, reported
 in 1993 Cr.L.J. 3214 (Del). It is also sought to be
 argued that in the absence of specific provision of law
 empowering the Magistrate or the Court below to issue
 warrant at the stage of investigation in a matter and
 for the purpose of the appearance of a person before the
 investigation officer, the Courts or Magistrate do not
 enjoy inherent powers and that the same is well settled
 by the decision of the Apex Court in the case of Adalat
Prasad vs Rooplal Jindal & Ors. reported in 2004 ALL
 MR. (CRI) 3131 (SC).

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 7. The learned advocate appearing on behalf of the
 Respondents, on the other hand, while referring to their
 affidavit filed by the Investigating Officer, has
 submitted that the statement of the witnesses as well as
 one of the accused involved in the matter, disclose
 involvement of Rasiklal and Joshi in the offence
 punishable under Section 3, 25A of the MCOC Act and in
 that regard the investigation is in progress and for
 that purpose the custodial interrogation of Rasiklal and
 Joshi is necessary. He has further submitted that since
 inspite of all the efforts on the part of the
 investigating machinery to secure presence of Rasiklal
 and Joshi before the police in the course of

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 investigation did not yield fruitful result, the
 respondents were compelled to approach the Special Judge
 for getting non bailable warrant in order to secure the
 presence of the said persons. According to the learned
 advocates, the Magistrate and the Court below have ample
 jurisdiction to pass such an order and direct issuance
 of the warrant even at the stage of investigation,
 particularly when a charge-sheet in relation to the
 offence against the persons against whom the
 investigation is complete has already been filed, while
 the investigation against others is yet to be completed.
 They have further submitted that consequent to issuance
 of such warrant, the person against whom such warrant is
 issued has to appear before the Court to be dealt with
 u/Sec. 167 of Cr.P.C. and being so it cannot be said
 that there is any infraction of Section 73 of Cr.P.C.
 while issuing the warrant.

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 8. It is also sought to be argued on behalf of the
 Petitioner that the fact that Rasiklal was all
 throughout willing to cooperate with the investigating
 agency and it is only on account of circumstances beyond
 his control that he was not able to come to India
 immediately in answer to the letters issued by the
 Investigating Agency, and this fact was suppressed by

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 the Investigating Agency while seeking the order for
 issuance of the warrant. The contention is sought to
 the countered by referring to the contents of the
 application by the Respondents while submitting that the
 same apparently discloses the involvement of Rasiklal
 and Joshi being revealed by the accused in the course of
 the investigation.

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 9. The order is also sought to be challenged on the
 ground that the contention regarding so called
 involvement of Rasiklal is purely after thought inasmuch
 as that when the application for supply of copy of the
 charge-sheet in MCOC Case No.1/205 was filed on behalf
 of Rasiklal, it was sought to be contended on behalf of
 the respondents that Rasiklal was not involved in the
 matter nor his name was disclosed in the charge-sheet.
 The contention is sought to be countered by contending
 that there was no such statement made about non
 involvement of Rasiklal in the offence and what was
 submitted was that in the charge-sheet already filed
 before the MCOC Court, the name of Rasiklal was not
 disclosed as the accused at that stage.

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 10. It is also to be noted that the learned advocate
 appearing for the respondent No.1 has raised preliminary

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 objection to the effect that the matter is essentially
 against the order passed by the Special Court and that
 being a judicial order, a revision application or a
 Petition under Article 227 of the Constitution of India
 lies against the same and in that case the matter will
 have to be placed before the learned Single Judge. The
 same is countered on behalf of the petitioner submitting
 that the petition is essentially in relation to the
 absence of jurisdiction of the court below for issuance
 of the warrant during the pendency of the investigation
 and prior to filing of the charge-sheet against the
 person against whom the warrant is sought to be issued
 and being so, there is no question of driving the
 petitioner for the revision application or the petition
 under Article 227 of the Constitution of India.

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 11. As regards the preliminary objection sought to
 be raised on behalf of the Respondents we do not find
 any substance in the same. The Petitioner, as stated
 above, challenges the jurisdiction of the Magistrates or
 the Courts below to order issuance of warrant for the

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 purpose of appearance of a person before the
 Investigating Agency even before filing of the
 charge-sheet against such person. Being so, the
 preliminary objection in that regard is rejected.

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 12. Heavy reliance is placed in the decision of the
 Apex Court in Kaskar’s case while arguing about the
 absence of jurisdiction to the Magistrate or the Court
 below for ordering issuance of warrant. The Apex Court
 undoubtedly in Kaskar’s case while dealing with issue as
 to when and under what circumstances a Court can invoke
 the provision of Section 73 of Cr.P.C. had considered
 the point as to whether the Court can issue a warrant to
 apprehend a person during investigation for his
 production before police in aid of investigating agency.
 While dealing with the issue and the point, the Apex
 Court considered the decision of the Division Bench of
 this court in Mohd. Ahmed Yasin Mansuri vs. State of
 Maharasthra reported in 1994 Cr. L. J. 1854 (Bom).
 In Mohd. Mansuri’s case the Division Bench had held
 that the Designated Court could not have issued warrants
 in the aid of investigation and could have issued the
 same only by way of process issued under Section 204 of
 the Code. It was held that issuance of warrant after
 cognizance of an offence is taken would be a process
 contemplated under Section 204 (1)(b) of the Code, i.e.,
 it would be a process to face trial and there is no
 provision in the Code for issuance of warrant of arrest
 and custody of accused for the purpose of, or in aid of,

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 investigation and the process contemplated is a process
 to face trial. After taking note of the said decision
 of the Division Bench of this Court and on scanning
 through Chapter VI of the Code, the Apex Court has
 recorded rival contentions which were sought to be
 raised by the counsel appearing in the said matter. The
 contention which was sought to be raised on behalf of
 the State was that though in exercise of its power under
 Section 41 of the Code a police officer may without an
 order from a Magistrate and without a warrant, arrest a
 person who is concerned in any cognizable offence or
 against whom a reasonable compliant has been made, or a
 credible information has been received or a reasonable
 suspicion exists, of his having been so concerned, under
 the Code the police has no power of its own to compel
 his appearance if he evades the arrest. It is in that
 context, the court has been given a power under Section
 73 to issue warrant of arrest for apprehension of such a
 person. The said contention was sought to be countered
 by the learned Counsel appointed as Amicus Curiae while
 urging that the scheme of the Code is that the police
 has complete control of the investigation and is not
 aided by any judicial authority and once the
 investigation culminates in the police report under
 Section 173(2) that the Court steps in by taking

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 cognizance thereupon and issuing summons or warrant
 under Section 204 against the person arraigned and
 therefore, while investigating under Chapter XII the
 police is not entitled to seek the help of a Magistrate
 for the purposes of issuance of a warrant of arrest in
 aid of investigation.

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 13. The Apex Court referring to Section 73 of the
 Code held that " Section 73 confers a power upon a
 Magistrate to issue a warrant and that it can be
 exercised by him during investigation also, can be best
 understood with reference to Section 155 of the Code.
 As already noticed under this section a police officer
 can investigate into a non-cognizable case with the
 order of a Magistrate and may exercise the same powers
 in respect of the investigation which he may exercise in
 a cognizable case, except that he cannot arrest without
 warrant. If with the order of a Magistrate the police
 starts investigation into a non-cognizable and
 non-bailable offence, (like Sections 466 or 467 (Part I)
 of the Indian Penal Code) and if during investigation
 the Investigating Officer intends to arrest the person
 accused of the offence he has to seek for and obtain a
 warrant of arrest from the Magistrate. If the accused
 evades the arrest, the only course left open to the

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 Investigating Officer to ensure his presence would be to
 ask the Magistrate to invoke his powers under Section 73

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 and thereafter those relating to proclamation and
 attachment. In such an eventuality, the Magistrate can
 legitimately exercise his powers under Section 73, for
 the person to be apprehended is "accused of a

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 non-bailable offence and is evading arrest".

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 14. The learned advocate appearing for the

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 petitioner, however, drawing our attention to the
 specific ruling of the Apex Court that "since warrant is
 and can be issued for appearance before the court only
 and not before the police and since authorisation for
 detention in police custody is neither to be given as a
 matter of course nor on the mere asking of the police,
 but only after exercise of judicial discretion based on
 materials placed before him, Mr. Desai was not
 absolutely right in his submission that warrant of
 arrest under Section 73 of the Code could be issued by
 the courts solely for the production of the accused
 before the police in aid of investigation", in para 22
 of the judgment, submitted that neither it was disclosed
 that Rasiklal was involved in the offence or required to
 in any MCOC case in respect of the charge-sheet which
 was already filed before the Special Court nor the name

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 of Rasiklal was referred as wanted accused in the
 charge-sheet filed in the said Case and being so,
 question of applicability of section 73 does not arise
 at all and in any case there cannot be a warrant for
 appearance of the person before the police in aid of
 investigation. The contention of the learned advocate
 for the petitioner is that the application which was
 filed for issuance of such warrant did not disclose any
 intention on the part of the respondent regarding the
 production of Rasiklal before the Magistrate or the
 Court in pursuance of the said warrant.

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 15. Perusal of copy of the Application filed before
 the Special Judge for the purpose of obtaining warrant
 ex-facie discloses reference to the subject of the
 application as "Request to issue open non-bailable
 warrant against wanted accused persons". Undoubtedly
 the application was filed in relation to Rasiklal and
 Joshi. The Application also stated that "During the
 investigation of this case, it was revealed that one
 Jagadishprasad Mohanlal Joshi @ J.M.Joshi, owner of Goa
 Gutka and Rasiklal Manikchand Dhariwal, owner of
 Manikchand Gutka have played an important role in this
 case. Both Jagdishprasad Mohanlal Joshi & Rasiklal
 Manikchand Dhariwal were summoned to attend this office

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 for enquiry in connection with this offence. However,
 both of them have intimated that they are unable to
 attend the investigation agency immediately............"
 The application further stated that "the investigation
 so far carried out reveals that Jagdishprasad Mohanlal
 Joshi and Rasiklal Dhariwal had meeting with wanted
 accused Anis Ibrahim Kaskar and arrested accused
 Jamiruddin @ Jambo at Dubai in connection with
 settlement of financial dispute between themselves". It
 cannot be disputed that an application for issuance of
 warrant against the accused persons need not disclose
 the materials collected by the investigation agency in
 the course of the investigation. The excuse of about
 financial loss cannot entitle a person to claim any sort
 of immunity or protection against his appearance before
 the investigation officer or insistence for non
 cooperation to the Investigating Agency and more
 particularly when the investigation is in relation to
 the offence punishable under the provisions of MOCA,
 Act, as such an offence being of serious nature. Once
 the investigating agency requires the assistance of a
 person in the investigation of a matter, having reason
 to believe that the person concerned is acquainted with
 facts in relation to such offence, it is the duty of
 such a person to render all his assistance in that

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 regard to the investigating agency for completion of
 investigation as early as possible and mere excuse of
 loss of finance to such person cannot be a justification
 to evade or avoid or delay his appearance before the
 investigating agency.

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 16. For the reasons stated above therefore, merely
 because the application which was filed by the
 respondents did not elaborately disclosed all the facts
 and/or the acts on the part of Rasiklal revealing his
 involvement in the alleged offence that by itself will
 not enure to the benefit of Rasiklal or the petitioner
 to argue that there was no case made out by the
 Respondents for issuance of the warrant or to contend
 that the exercise of powers under Section 73 is illegal
 and that the warrant has been sought to be obtained for
 the parties for production of the person before the
 police in aid of investigation.

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 17. At this stage we have to note that we have
 perused the copy of the Warrant, which is stated to have
 been issued against Rasiklal and the Warrant clearly
 directs arrest of Rasiklal and his production before the
 Court. The Warrant nowhere directs the production of
 Rasiklal before the investigating officer or the said

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 agency nor it appears to have been issued in aid of
 investigation as such.

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 18. The ruling of the Apex Court in Kaskar’s case
 rather than assisting the Petitioner in their contention
 clearly justifies the order passed by the Court issuing
 warrant against Rasiklal. Once it was apparent that
 inspite of efforts on the part of the investigating
 agency Rasiklal had failed to appear before the
 Investigating Agency within the time granted and when
 required, and at the earliest opportunity, certainly the
 Respondents were justified in approaching the Court for
 exercise of its powers under Section 73 of the Code.
 Earliest opportunity cannot be said to be as per
 convenience of the person who is required to be appear
 before the investigating agency. Merely because
 Rasiklwal wants to enjoy NRI’s status and in that regard
 he is required to be out of India for 182 days and
 atleast till end of March 2005 that would not entitle
 him to contend that he will not appear before the
 investigating agency in India before the completion of
 the said period. The earliest opportunity would be in
 terms of the notice in that regard issued by the
 Investigating Agency, unless there are unavoidable
 circumstances which do not permit the person to appear

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 before the investigating agency. Merely because a

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 person wants to enjoy NRI’s status that cannot be a
 justification to contend that the earliest opportunity
 would be only after completion of 182 days nor the same
 could be said to be unavoidable circumstances. Apart
 from the desire to claim such benefit, no other
 difficulty as such was expressed by Rasiklal to appear
 before the investigating agency in India. The method
 which is to be followed for investigation cannot be
 dictated by a person who is required to assist the
 investigating agency. Whether it should be by way of
 video conference or visiting the foreign countries by
 the investigating officer, the same cannot be decided by
 Rasiklal. It is for the investigating agency to take
 appropriate decision in that regard. It cannot be left
 to the choice of a person who has been accused of
 involvement in offence and particularly offence under
 MCOC Act. Money power cannot be allowed to compel or
 make the investigation agency to dance to the tune of
 the person required to be interrogated to ascertain
 about his or her involvement in an offence, nor it can
 be allowed to decide the methodology of the
 investigation to be followed by the investigating
 agency.

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 19. The decision of the Delhi High Court in
Washeshar Nath Chadha’s Case was essentially on

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 concession and for the reason that warrant was sought to
 be issued for co-lateral purpose. The learned Single
 Judge of the Delhi High Court in para 25 has clearly
 observed that " CBI has now conceded that resort could
 not be made to aforesaid provisions for enforcing the
 presence of the petitioner in the CBI office at New
 Delhi." Further in para 28 of the decision it has been
 observed that " The learned Counsel for the petitioner
 has submitted that the Investigating Officer was fully
 aware of the fact that he was not in a position to
 execute these warrants of arrest against the petitioner
 addressed to him at the Delhi address of the petitioner,
 who was in fact residing at Dubai and it was only with a
 collateral purpose to get the passport of the petitioner
 revoked. I am, afraid, it is not open to this Court to
 visualise the hidden purpose but the fact remains that
 these warrants could not be issued being not warranted
 by the fact of the case." Apparently the decision was in
 the peculiar facts of the case and does not lay down any
 proposition of law as such. That apart in view of the
 Supreme Court decision in Kaskar’s case, it is too late
 in the day to contend that the Magistrate or Courts
 below are powerless to issue a warrant at the stage of

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 investigation. Undoubtedly on issuacne of such warrant,
 the production of such person would be before the
 concerned court and not before the Investigating officer
 and on such production, the court will have to deal with
 the person in accordance with the provisions of law
 comprised under Section 167 of Cr.P.C. In fact the
 decision of the Apex Court in Kaskar’s case in that
 regard is very clear wherein it has been ruled that " on
 such production, the court may either release him on
 bail under Section 439 or authorise his detention in
 custody (either police or judicial) under Section 167 of
 the Code".

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 20. In fact the point as regards such jurisdiction
 of the Magistrate to issue warrant at the stage of
 investigation came to be considered by the Division
 Bench of Alhabad High Court in the case of L.Ram Narain
 Singh vs. A.Sen reported in AIR 1958 ALLHABAD 758.
 After referring to Sections 54, 55, 56, 60, 61, 64, 65,
 167, 190, 204 of Old Cr.P.C. 1893, which correspondence
 to Section 41(1), 41(2), 55(1), 56, 44(1), 44(2), 167,
 190 and 204 respectively of the New Code, i.e. Criminal
 Procedure Code, 1973. The Division Bench of Alhabad
 High Court held thus :

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 "A reading of the above sections would show that
 there is no express provision in the Code of
 Criminal Procedure authorising any Magistrate to
 order the arrest of any person, who, he thinks,
 is guilty of the commission of a cognizable or a
 non-conginzable offence unless he has taken
 congnizance of the case himself. But under
 Section 167, a Magistrate has to decide whether
 he will remand the accused to the custody of the
 police and, even if he has no jurisdiction to
 try the case, he can in suitable cases remand
 the accused to the police custody for the
 maximum period of 15 days. It would be
 anomalous if the Magistrate had the power to
 remand the police custody for 15 days but would
 not have the power to arrest a person whom he
 believed to be guilty.

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 It would further be anomalous that any police
 officer may have the power to arrest a person,
 reasonably suspected of having committed a
 cognizable offence, but the Magistrate should
 have no such power. The very fact that a police
 officer under S.54 may arrest without an order
 from a Magistrate and without a warrant implies

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¶87

 that such an officer may also arrest with a
 warrant from a Magistrate, and this means that
 the Magistrate may issue a warrant even at the
 stage where S.54, Cr.P.C. applies."

¶88

 In fact the said ruling of Alhabad High Court clearly
 discloses that the view taken by the Alhabad High Court
 finds implied approval by the Apex Court in Kaskar’s
 case. The only rider which has been added in Kaskar’s
 case is that once the warrant having been issued in
 exercise of powers under Section 73, the person so
 arrested is to be produced before the Court and the
 court on production of such person has to deal with him
 in accordance with the provisions of law comprised under
 Section 167 of Cr.P.C.

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 21. The contention was sought to be raised that such
 power to issue warrant by the Court against a person
 other than the one who is already accused before the
 court is available only under Section 319 of Cr.P.C.
 and in that regard an attention was drawn to the
 decision of the Apex Court in Kishori Singh’s case
 (supra). In the said case the Apex Court had held that
 the Magistrate cannot issue process against those
 persons who have been named in the F.I.R. as accused

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 persons, but are not chargesheeted in the charge-sheet
 which is filed by the police under Section 173 of .P.C.
 and that, so far as those persons against whom
 charge-sheet has not been filed, they can be arraigned
 as persons in exercise of powers under S.319 of Cr.
 P.C. when some evidence or materials are brought on
 record in course of trial or they can also be arrayed as
 the accused persons only when a reference is made either
 by the Magistrate while passing an order of commitment
 or by the Sessions Judge to the High Court and the High
 Court, on examining the materials, comes to the
 conclusion that sufficient materials exist against them
 even though the police might not have filed
 charge-sheet. It is to be noted that Section 319
 relates to the cases where some material is brought
 against the persons in the course of trial or while the
 matter is pending before the court. The provisions of
 Section 319 of Cr. P.C. do not control the powers of
 the Investigating Agency under Section 173 (8) of
 Cr.P.C. The decision which is in relation to the matter
 pending before the court and the powers of the court to
 issue warrant against the person against whom the
 material is brought during the course of trial, nowhere
 speaks of any bar or any embargo over the powers of the
 investigating agency to investigate further into a

¶92

 : 25 :

¶93

 matter, if some material requiring such further
 investigation is revealed to such agency after filing of
 the charge-sheet. Being so, if an involvement of any
 person in the offence comes to the notice of the
 investigating agency and in that regard if such a person
 fails to render necessary cooperation to the
 investigating agency, nothing prevents the investigating
 agency from approaching the court for exercise of powers
 under Section 73 of Cr.P.C. for issuance of the warrant
 against such person on arrest of such person however, he
 will have to be primarily produced before the court to
 be dealt with in accordance with the provisions of law
 comprised under Section 167 of the Code.

¶94

 22. The decision in Adalat Prasad’s case is of no
 help to the petitioner to question the power of the
 Magistrate or the Court below to issue warrant under
 Section 73 of the Code. That was a case wherein the
 Apex Court has ruled that after taking cognizance of the
 complaint and on examining the complaint and the
 witnesses if the magistrate is satisfied that there is
 sufficient ground to proceed against the person shown as
 accused and there upon issues process by way of summons
 under Section 204 of Code, it would disclose that a
 Magistrate was satisfied about the sufficiency of the

¶95

 : 26 :

¶96

 grounds against the person named as the accused and that
 time the stage under Section 203 being already over, the
 matter can only be proceeded further in terms of
 provisions comprises under Section 204. At the same
 time it has also been held that if such process was
 issued without sufficient materials for satisfaction
 regarding need for such process, the aggrieved person
 can certainly approach the High Court in exercise of
 powers under Section 482 of the Code but cannot approach
 the same Magistrate for recall of process as the Code
 does not contemplate a power to review such order by the
 Magistrate. The specific ruling in that regard is that:

¶97

 "It is true that if a Magistrate takes
 cognizance of an offence, issues process without
 there being any allegation against the accused
 or any material implicating the accused or in
 contravention of provision of Sections 200 and
 202, the order of the Magistrate may be
 vitiated, but then the relief an aggrieved
 accused can obtain at that is not by invoking
 section 203 of the Code because the Criminal
 Procedure Code does not contemplate a review of
 an order. Hence in the absence of any review
 power or inherent power with the subordinate

¶98

 : 27 :

¶99

 criminal Courts, the remedy lies in invoking
 Section 482 of Code."

¶100

 That is not the case in hand. It is not the case of
 exercise of inherent powers as such by the Magistrate or
 the Court for issuance of the warrant. The power to
 issue the warrant specifically exists under Section 73
 and that has been clearly ruled by the Apex Court in
 Kaskar’s case (supra).

¶101

 23. The absence of name of Rasiklal in the

¶102

 charge-sheet already filed in MOCA case cannot lead to
 the conclusion that the requirement of Rasiklal for
 interrogation and his appearance for that purpose before
 the investigating agency is either after thought or for
 any collateral purpose. The contention that the
 prosecution had informed to the lower court in answer to
 Rasiklal’s application for copy of charge-sheet in MCOC
 case that Rasiklal was not involved in the matter is not
 only devoid of substance but virtually amounts to
 distortion of the submissions made by the prosecution
 before the lower court in the regard. As rightly
 submitted by the learned advocate for the respondents,

¶103

 what was submitted by the prosecution was that "the
 charge-sheet does not reveal that the applicant is a

¶104

 : 28 :

¶105

 wanted accused at this stage". The statement nowhere
 discloses that Rasiklal was not involved in the matter
 at all. On the contrary the statement was clearly to
 the effect that in the charge-sheet already filed in the
 case, the name of Rasiklal was not disclosed as the
 wanted accused at that stage. That does not mean to say
 that Rasiklal was or is not wanted in the matter.
 Besides, the application for warrant was already filed
 on 20.12.2004, much prior to the said statement. The
 said statement was in relation to those persons in
 respect of whom the investigation was already completed
 and not in relation to the investigation relating to
 Rasiklal’s involvement in the offence the investigation
 in respect of which is still in progress.

¶106

 24. Besides, there is no case made out for

¶107

 exercising writ jurisdiction in favour of a person who
 is reluctant to render necessary and prompt cooperation
 to the investigating agency and that too relating to a
 severe offence punishable under MOCA Act and one who
 takes delight in imposing condition for his appearance
 before the investigating officer.

¶108

 25. For the reasons stated above, therefore, we do

¶109

 : 29 :

¶110

 not find any illegality on the part of the Respondents
 in the facts and circumstances of the case, for having
 approached the Special Court for issuance of the warrant
 against Rasiklal, and therefore, there is no case for
 interference in the impugned warrant or for the order of
 issuance of warrant and hence, the Petition fails and is
 hereby dismissed. Rule is discharged with no order as
 to costs.

¶111

 26. At this stage the learned advocate for the
 petitioner requested for Stay of the Order passed today
 as well as for the Stay to the warrant. Considering the
 view taken by us, we do not find any justification for
 the grant of any stay and prayer in that regard is
 therefore rejected.

¶112

 (R.M.S.KHANDEPARKAR, J.)

¶113

 (P.V.KAKADE, J.)

Praksh Rasiklal Dhariwal v. Central Bureau of Investigaion and Anr.

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Praksh Rasiklal Dhariwal v. Central Bureau of Investigaion and Anr.

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