A news was published on 15.02.2021 by various media groups that a Delhi court has issued non-bailable warrant against a Mumbai based lawyer Nikita Jacob in a case registered by Delhi police under 124-A, 120-B & various other provisions of Indian Penal Code. The offence under 124-A is cognizable and non-bailable in nature and the police has vast power to investigate a cognizable offense under CRPC.

Before delving into the complexity of the issue, it is necessary to understand the factual matrix of the case. A Swedish activist named Greta Thunberg shared a toolkit related to ongoing farmer’s protest on twitter. According to the police, the toolkit has particulars which is seditious in nature and it was aimed at spreading disaffection and ill-will against the government of India and creating disharmony among various social, religious and cultural groups. Related to this incident, an FIR has been registered against unnamed person few days back.

The charged imposed on unnamed person in the FIR are cognizable in nature and police has unlimited power to investigate the offences. Also, police can arrest any person qua the offences without any warrant from magistrate/court. There are several alleged irregularities in actions of police which have been objected upon by many legal luminaries. This author, find an occasion to highlight by way of this article, the marked irregularities in the procedure adopted by police in this sensitive case. The criminal jurisprudence of India, although may be termed as loathsome, but it is hugely inclined in favour of accused and ensure fair enquiry and trial, if followed in letter and spirit.

Factually, Nikita Jacob is an alleged conspirator of this toolkit case and police has all power under CrPC to make her participate in the investigation or to arrest her without warrant. But police instead of using its own power to investigate the toolkit case, resorted to approach the court for issuance of an arrest warrant against Nikita Jacob under section-73 of CRPC.

Illegality In The Non-Bailable Warrant Issued By Delhi Court:

In the above-mentioned facts, the moot question which arise is that whether a court can issue a warrant under section-73 of CRPC to apprehend a person during investigation for his production before police (qua the FIR which is registered few days back) in aid of the investigation agency?
For the bare perusal of the readers, section-73 of CRPC is extracted verbatim here as:
73. Warrant may be directed any person.

1. The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable, offence and is evading arrest.
2. Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
3. When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

Only Clause (1) of section 73 is relevant here and it says that A CJM or magistrate of the 1st class may direct a warrant to any person within his local jurisdiction for the arrest of three categories of accused i.e:

1. Escaped Convict
2. Proclaimed offender
3. Any person who is accused of a non-bailable offense and evading arrest

The first two categories evidently related to a situation where the court has already taken the cognizance of the offence or has already convicted a person. And the 3rd category is applicable when the person is evading the arrest and accused of a non-bailable offense. Delhi court has issued non-bailable warrant against Nikita Jacob taking power from the 3rd category of section -73.

The category of persons whom the police can arrest without warrant during investigation and the 3rd category envisaged under Section 73 above, are not coextensive or the same thing. The police could arrest any person whom it suspects to be involved in any ‘cognizable’ offence. Whereas the 3rd category is relating to only those offences which are ‘non-bailable’. ‘Cognizable’ and ‘non-bailable’ are not same thing.

There are many offences even in the first schedule attached to Cr.P.C. itself; which are ‘cognizable’ but ‘bailable’ and also which are ‘noncognizable’ but also ‘non- bailable’. So, there is no necessary connection between the cases where police can arrest the accused without warrant and the cases where the Magistrate could issue warrant of arrest against a person under Section 73 of Cr.P.C. The Magistrate may not be authorized to issue warrants in a given case; where even the police could have arrested such a person without warrant.

On the contrary, the Magistrate may be authorized to issue warrants even where the police were not authorized to arrest a person without warrant at all. Also, clause (2) of Section-78 makes it mandatory that when a court is issuing arrest warrant outside its local jurisdiction then court issuing the warrant shall forward, along with the warrant, the substance of information and relevant documents, if any, against the person to be arrest so that the session court/ CJM under whose local jurisdiction arrest has been made can consider the substance of information and relevant documents for the purpose of granting bail under section 81 of CRPC.

It is quite evident from Section-78(2) that legislature never intended to authorize the magistrate/court to issue arrest warrant at the nascent stage of the investigation because at the nascent stage, there are no substance of information or documents available other than the FIR. Also, evidence, if any, collected at the nascent stage are not to be sent with the warrant of arrest under clause (2) of section-78.

Therefore, 3rd category above, has to be read in the same sense and as meant for the same stage of proceedings, as in other two categories above. Hence, under Section 73 the Magistrate can issue warrants against a person who is evading arrest, only if such a person was required to appear before the court under some other order passed under some other provision; like under Section 87, Section 89 or under the Section 390 of Cr.P.C.; during the trial or at the time of or after taking cognizance. This provision cannot be used only in aid of the investigation officer or for ensuring that such a person appears before the court and is handed over to the investigating officer.

Also, in the case of State through CBI Vs. Dawood Ibrahim Kaskar (2000) 10 SCC 438, the Supreme Court has dealt with the language of Section 73 of Cr.P.C., and has explained the situation in which the Magistrate can issue warrant of arrest. As observed above, although the bare language of the Section, read as it is, requires as a pre-condition; that the person is evading the arrest, however, even this has been interpreted by the Supreme Court.

It has been held by the Supreme Court that to arrest such a person, who is evading arrest, the Magistrate has to exercise his discretion, in judicial manner and the Magistrate cannot issue warrants of arrest only for the purpose of the arrest, and for the aid and assistance to the police officer.

FIR has been registered a few days back and that too against unnamed persons. On 11th Feb,2021 search has been made by police in the house of Nikita Jacob and thereafter within 4 days Delhi court has issued Non-bailable warrant against her. So, in these circumstances it cannot be in any manner said that she is evading arrest for the purpose of section-73 of CRPC.

Moreover, she has filed transit bail in Mumbai Court on 15th Feb, it shows that she is still residing in the city where she usually resides. If police wanted to arrest Nikita Jacob, they could have done it without arrest warrant from court but it seems police had put its gun on the court’s shoulder and fired.

There is no bar in criminal jurisprudence for filing an application for issuance of arrest warrant but when an application for arrest warrant is filed, then the magistrate/court has to apply its mind and to have to see what is purpose behind the application, if the application is filed solely for the purpose of court’s aid in the investigation then the application shall be dismissed in limine.

But the Delhi court who has issued the non-bailable warrant failed to exercise its discretion, in judicial manner and the court has issued the warrants of arrest only for the purpose of the arrest, and for the aid and assistance to the police officer. The arrest warrant issued by Delhi court is completely mechanical in nature and shows non-application of judicial mind.

In the year 2019 similar issue has arisen in the state of Punjab and there also magistrate has issued an arrest warrant just for the aid of investigation agency but when the arrest warrant was challenged before Hon’ble Punjab and Haryana high court in CRM-M No. 47872/2019 titled as Gurjeet Singh Johar Vs. State of Punjab, not only the court has quashed the arrest warrant but also issued guidelines to all magistrate/court in state of Haryana and Punjab related to exercise of power under section-73 so that it can be ensured that no order shall be passed by magistrate/court in a mechanical and casual manner.

Transit Remand: When Arrested Without Warrant

If the arrest is made by police in a cognizable offence without warrant outside the jurisdictional limit and it is not possible to produce the accused within 24 hours before jurisdictional magistrate then police have to produce the accused before nearest magistrate for taking transit remand under section 167 of CRPC. While praying for the transit remand police has to furnish the copy of FIR and case diary to the nearest magistrate. And that nearest magistrate after seeing the FIR, case diary and by applying his mind judicially will decide whether transit remand to police is granted or not.

Thus, it is clear that even Magistrate before whom a transit application is filed is not required to merely satisfy himself that an offence has been committed and that the police officer seeking a remand is properly authorised. Such Magistrate is also required to apply his mind to ensure that there exists material in the form of entries in the case diary that justifies the prayer for transit remand.

The scope of this exercise has been explained by the Supreme Court in Manubhai Ratilal Patel v. State of Gujarat in the following words:
24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand.

The purpose of remand as postulated Under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.

Transit Bail: When Arrested Without Warrant

When the police is seeking transit remand under Section-167 of CRPC, the accused can also seek transit bail simultaneously and magistrate enjoy same amount of discretion as he/she enjoys while deciding bail application under section-437 of CRPC. The transit bail is granted only for the limited purpose and that is to give accused sufficient time to approach the jurisdictional court for regular bail under section-437 of CRPC. It is settled law that wherever the jurisdiction of the Criminal Court for trial and inquiry of the offence lies, there alone would lie the jurisdiction for grant of regular or anticipatory bail. Hence, the transit bail is granted for the limited purpose.

Transit Remand: When Arrested With Warrant

When an accused is apprehended on the warrant issued by a court outside its jurisdictional limit then as per section 80 & 81 of CRPC the police have to seek transit remand from the executive magistrate, superintendent of police or commissioner of police.

These executive authorities while considering the transit remand application has to satisfy that:

• the police officer seeking a remand is properly authorized
• the person arrested appears to be the person intended by the court

Transit remand when arrested with warrant is nothing but a mere formality done by person executing the warrant. Here, the authority granting transit remand is not judicial authority but an executive authority. Police is not bound to show either the copy of the FIR or case diary to these executive authorities and these executive authorities performs the role of a post office and nothing beyond.

Hence, it can be inferred that transit remand when arrest is made without warrant is scrutinized by nearest judicial magistrate by considering the case diary and the FIR and he/she may refuse to grant the transit remand to the police. But on the contrary, in transit remand when arrested with warrant the executive authority has no power to refuse the transit remand and they are bound to direct the removal of arrested person before the court who has issued the warrant.

Transit Bail: When Arrested With Warrant

When a person is arrested with warrant for a non-bailable offence, he can move an application for transit bail under second proviso to section-81 of CRPC to the chief judicial magistrate or session judge of the district court in which the arrest is made. The magistrate has no power to grant transit bail when arrest is made with warrant. The second proviso to Section 81 does not itself confer any power on a Court to release the person on bail.

It only provides for the release of a person arrested in execution of a warrant issued by the Court under Section 78. To enable such CJM or the Court of Sessions to consider whether bail should or should not be granted to the person arrested in execution of warrant, it has further been provided in Sub Section (2) of Section 78 that the Magistrate issuing a warrant should also forward along with the warrant, the substance of the information together with relevant documents.

Thus, the second proviso to Section 81 is limited to the jurisdiction of the Court in the matter of granting bail to a person arrested in execution of a warrant issued under Section 78 of the Code. Section 81 pertains to and provides for the grant of bail by the Courts having jurisdiction over the place of arrest in cases of arrests of persons in execution of warrants of arrest. Even if the accused is found far beyond the area of crime, he has to be brought back before the Court having local jurisdiction to try the same.

According to Section 177 Cr.P.C., the jurisdiction of a Criminal Court is governed by the situs of the commission of offence and not by the shady or evasive movements of the offender. It is not that the accused person's presence would carry the jurisdiction with him to any Court where he may be present or where he may deliberately have chosen to flee. It is a cardinal principle of criminal jurisprudence that wherever the jurisdiction of the Criminal Court for trial and inquiry of the offence lies, there alone would lie the jurisdiction for grant of regular or anticipatory bail, unless the statute expressly provides otherwise.

Thus, it is manifest that power under the second proviso to Section 81 can only be exercised with regard to the warrants of arrest issued under Section 78 and on the basis of documents mandated to be forwarded along with the warrant by Sub Section (2) thereof.

The power to grant bail can, therefore, be exercised only within the narrow parameters of Section 81 read with Sub-Section (2) of Section 78. Hence, we can infer that the discretion enjoys by CJM or session court under section-81 is not wide as under Section-437 or Section 167 but only restricted to the content of information sent by the court who has issued the warrant.

Why Police Had Put Its Gun On The Court’s Shoulder And Fired

Now, another moot question arises that if police have power to arrest even without warrant then why police asked court to issue non-bailable warrant?
If police have arrested Nikita Jacob without warrant in Mumbai or any other place outside the local jurisdiction of Delhi then police were bound to move an application under section-167 of CRPC for transit remand. And the magistrate who is considering transit remand application may or may not have granted the transit remand.

But police advertently bypassed this process of transit remand by making the Delhi court to issue arrest warrant. Now, police have to follow section- 80/81 of CRPC while arresting Nikita Jacob, and transit remand under these section before executive authorities is mere formality. Police officer’s ID card and Nikita Jacob’s ID card that is what required to grant transit remand under section- 80/81. Also, Bail jurisdiction of court under whose jurisdiction Nikita Jacob will be arrested is restricted by section-81 read with section-78(2).

While concluding the article, I am compelled to quote Justice AN Mulla, a judge of Allahabad High Court. In a judgement he wrote:
I say with all sense of responsibility, there is not a single lawless group in whole of the country whose records of crime comes anywhere near than that of organised gang of criminals known as Indian Police Force

No, doubt, the accused deserve maximum punishment according to law but only if proven guilty. If the police, whose prime duty is to maintain the law and order, starts to create lawlessness in disguise of legal procedures, then the very freedom of subjects will be at stake and justice shall be first casualty. Police, in the case hereinbefore discussed, abused the procedure in their favour and against the accused. Police is a prosecuting agency, it should not favour victims or state, rather it should favour ‘Justice’.

The unnecessary use of section 73 and 78 of CrPC just to fix the accused by determining her available and lawful remedies, the police has done a great disservice to judicial system of nation. The police shot from the shoulder of court and unfortunately court permitted that by owning a mechanical approach. This was none other than abdication of duties assigned to court and police.

When police had all the power under 41 CrPc to nab the accused, then getting the warrant issued under 73 of CrPC showed the deep-rooted mala fides of police at the behest of state. The subjugation of torch bearer of freedom is vile and condemnable. The snafu, which police has created in their limited jurisdiction needs to be sorted out by the constitutional courts of the country.

Written By: Nishant Khatri - Delhi-based lawyer
Email: [email protected]