ORDER

G. Sasidharan, J.

1. Petitioners in these petitions are accused in two different cases and they seek direction to the Magistrate to release them on bail when they are arrested and produced in court on the strength of warrant issued under Section 204 of the Criminal Procedure Code. Such direction has to be given to the Magistrate, according to the petitioners, since when an accused is arrested on the strength of warrant issued under Section 204 and brought in court he cannot be remanded to judicial custody. The question arises for consideration is whether Magistrate has the power to remand an accused brought before him under arrest on executing a warrant issued under Section 204 Cr.P.C.

2. Crl. M.C. 5875 of 2002 is filed by the ninth accused in C.P. 9 of 2002 on the file of the Judicial Magistrate of the First Class, Nadapuram. The allegation against the petitioner and the other accused in the above crime is that they committed the offences under Sections 143, 147, 148, 341 and 307 read with Section 149 IPC and Sections 3 and 5 of the Explosive Substances Act. After completing the investigation in the above crime, final report was filed in court and the case is taken on file by the Magistrate as C.P. 9 of 2002. On 13.3.2002, the learned Magistrate made an order to issue non-bailable warrant to the petitioner. Petitioner had not been arrested during the course of investigation.

3. Crl. M.C. 5957 of 2002 is filed by the third accused in Crime 587 of 2001 of Nadapuram Police Station and the allegation in that crime was that the petitioner and the other accused committed the offences under Sections 143, 147, 148, 380, 448 and 436 read with Section 149 IPC and Sections 3 and 5 of the Explosive Substances Act. In that crime also the investigation was completed and final report was filed in court. The case was taken on file by the Magistrate as C.P. 108 of 2001. On 2.5.2002, the Magistrate made an order directing issuance of non-bailable warrant to the petitioner. The above petition is filed for quashing the order made by the Magistrate issuing non-bailable warrant to the petitioner. Crl. M.C. 5875 of 2002 is filed for quashing the proceedings in C.P. 9 of 2002 in which the petitioner in that petition is an accused or in the alternative to quash the order directing issuance of non-bailable warrant to him. There is also prayer that direction may be given to the Magistrate to release the petitioner on bail on his appearance in court.

4. According to the petitioners, the warrant that can be issued under Section 204 Cr.P.C. can only be for the appearance of the accused in a case in court and when an accused is brought before court on arresting him in pursuance of such a warrant issued by court, he cannot be remanded to judicial custody. The petitioner would contend that Sections 70 or 71 Cr. P.C. does not authorise the Magistrate to issue non-bailable warrant. It is also maintained that under Section 309(2) Cr.P.C. after taking cognisance of the offence, the accused can be remanded only if accused is in custody at the time of taking cognizance of the offence.

5. Section 70 Cr.P.C. deals with form of warrant of arrest and duration. The above section says that every warrant of arrest issued by a court under the Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. Sub-clause (2) of the section says that every such warrant shall remain in force until it is cancelled by the Court which issued it or until it is executed. Section 71 Cr. P.C. says that the Court has the power when issuing a warrant of arrest of any person to direct that if such person executes a bond with sufficient sureties for his attendance before a court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. In Section 70 or in Section 71, no mention is made about "non-bailable warrant". The term used in both the above sections is warrant and a warrant issued without making an endorsement that the officer who executes the warrant can release the petitioner on bail will be a warrant for effecting arrest and producing the accused before court. For a warrant to be bailable, there will have to be endorsement as mentioned in Section 71 Cr. P.C. and when there is no endorsement in the warrant as said in Section 71, the warrant has to be treated as one given for effecting arrest and producing the accused in court. That is also clear from Form No. 2 in the Second Schedule of the Cr. P.C. The form of endorsement regarding making the warrant bailable is also shown in Form No. 2. So the term warrant used in Section 70 Cr.P.C. has to be understood as a warrant issued for effecting arrest and producing the accused in court.

6. Section 309(2) Cr.P.C. says that the court after taking cognizance of an offence or commencement of trial finds it necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Explanation 1 of the above section says that if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, that is a reasonable cause for a remand. Section 309 deals with the power of the court to postpone or adjourn the proceedings. In every enquiry or trial, the proceedings will have to be completed as early as possible. The trial has to be continued from day to day until all witnesses have been examined. Sub-clause (1) of Section 309 gives power to courts to adjourn the case even beyond the following day if it is found necessary that such an adjournment is necessary in the circumstances of the case. Sub-clause (2) has to be understood in the light of what is said in Sub-clause (1) of Section 309. What is said in Sub-clause (2) is regarding what the court has to do when the case is adjourned. When an adjournment is granted as stated in the above section if the accused is in custody, the court may by a warrant of arrest remand the accused. Such a statement in Sub-clause (2) of Section 309 cannot be understood as one which says that after taking cognizance of the offence or commencement of trial, the court can remand the accused only if he is in custody. Sub-clause (2) of Section 309 says about remand of an accused in a case in the circumstances mentioned in that section. In the light of what is said in Sub-clause (2) of Section 309 it cannot be said that after taking cognizance of the offence or after commencement of the trial, the court is not having the power to remand an accused who is not in custody. Explanation 1 of Section 309 says that what is said in that explanation is a reasonable cause for a remand and that does not in any way go to show that only if that reasonable cause is there, an accused can be remanded to judicial custody.

7. In State through C.B.I. v. Dawood Ibrahim Kaskar and Ors., (AIR 1997 SC 2494) the Supreme Court said that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the court when cognizance was taken or enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. That was a case in which on completing the investigation of the crimes, final reports were filed in court. After few days of filing of the final report, the Government of India with the consent of the Government of Maharashtra issued a notification entrusting, further investigation in the above cases to C.B.I, under the provisions of Section 5 of the Delhi Special Police Establishment Act. Three petitions filed by the C.B.I. came up for consideration before the Designated Court. One petition was filed for issuance of non-bailable warrant of arrest against the accused. Another petition was filed for publication of written proclamation under Section 8(3)(a) of TADA and also for issuance of open dated non-bailable warrants of arrest so that "Red Corner Notices" might be issued against the accused. According to the C.B.I., such notices were required to be got issued by INTERPOL to seek assistance in a foreign country to locate and apprehend fugitives. The Designated Court considered the applications and rejected the applications. There the stand taken by the CBI was that since further investigation into the offences in respect of which chargesheet had earlier been submitted was going on, the presence of the accused who were absconding was necessary for ascertaining their role in the commission of the offences. What the Designated Court said on rejecting the applications was that after cognizance was taken in respect of an offence, process court be issued to the persons accused thereof only to compel them to face the trial but no such process could be issued by the Court in aid of investigation under Section 73 of the Code. The circumstances which were available in the case which came up before the Supreme Court for consideration are not here in this case. That was a case in which after filing final report, further investigation of the crime was entrusted with the CBI and the question which arose for consideration was whether during the further investigation of the crime, warrant could be issued for arresting the accused for being given to police custody.

8. The remand and custody referred to in the first proviso to Sub-clause (2) of Section 309 are different from detention in custody under Section 167 Cr.P.C. Remand under the Section 309(2) relates to a stage after cognizance and can only be to judicial custody whereas detention under Section 167 relates to a stage of investigation and can initially be either in police custody or judicial custody. The Supreme Court in the above decision said that in cases in which after taking cognizance of the offence if further investigation is being conducted, there is no reason whatsoever for saying that the provisions of Section 167 would not apply to a person arrested by the police in the course of such investigation. What the Supreme Court said was that remand under Section 167 is possible in a case in which cognizance of offence had already been taken by the court and after that further investigation was allowed to be conducted. In paragraph 23 of the judgment of the Supreme Court it is said that Section 73 of the Code is of general application and that in the course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest. On production of an accused before court on arrest under a warrant issued under Section 73, the Court can either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. The Supreme Court said that it is not correct to say that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of accused before the police in aid of investigation. Such an observation was made since the request made by the CBI in that case for issuing warrant was that the CBI could keep the accused in custody for the purpose of the investigation. If there are sufficient reasons which would justify the remand of an accused brought under arrest after taking cognizance of the offence by court, there is ample power for the court to remand the accused to judicial custody. In cases in which cognizance of offence has been taken by the court giving the accused to police custody can be done only if there is further investigation conducted by the investigating agency with the permission of the court.

9. In both the cases, the court issued warrant to the petitioners. There is no ground for quashing the warrants issued to the petitioners. In Crl. M.C. 5875 of 2002 there is prayer for quashing the proceedings in the case. The reasons given in the above petition for quashing the proceedings in the case are the same reasons given for quashing the order directing issuance of warrant to the petitioners in that petition. There is no reason for quashing the proceedings in C.P. 9 of 2002. When the petitioners are brought under arrest, the Magistrate has the discretion to decide whether bail has to be granted to them or not. So there is no justification for giving direction to the Magistrate to release the petitioners on bail. Both the petitions are hence dismissed.