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
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
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
73. Warrant may be directed any person.
- 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.
- 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.
- 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:
- Escaped Convict
- Proclaimed offender
- 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
’ 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.
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
, 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
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
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
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
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]