[Section 8 (3) in case the person is accused of an offence under TADA.]
The moot question that now requires to be answered is whether a Court can issue a warrant to apprehend a person during investigation for his production before police in aid of the Investigating Agency.
While Mr. Ashok Desai, the learned Attorney General who appears on behalf of CBI, submitted that Section 73 coupled with Section 167 of the Code bestowed upon the Court such power,
Mr. Kapil Sibal, who appeared as amicus curie (the respondents did not appear in spite of publication of notice in newspaper) submitted that Court has no such power.
To appreciate the steps of reasoning of the learned counsel for their respective stands it will be necessary to refer to the relevant provision of the Code and TADA relating to issuance of processes.
Another factor which clearly indicates that Section 73 of the code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part “C” of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a court only in respect of a person ‘against whom a warrant has been issued by it’. In other words, unless the Court issues a warrant the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where in spite of its best effects the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of part “C” of Chapter VI. [Section 8 (3) in case the person is accused of an offence under TADA.]
Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power there under to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation.