Non-availability for investigation is a valid ground for Section 70 warrants and precludes Section 340 CrPC proceedings.

The petitioner was an accused in Criminal Case No. 1318 of 2014 for an offence under Section 66(1)(b) of the Prohibition Act, of which he was eventually acquitted on 28.08.2019.

During the trial, the petitioner filed an application (Exhibit-78) under Section 340 of the Cr.P.C., alleging that the Investigating Officer (IO) had made false statements to the Trial Court regarding the petitioner’s non-availability to obtain a Section 70 Cr.P.C. warrant.

The Trial Court dismissed this application on 28.08.2019, and the subsequent appeal (Criminal Appeal No. 29/2019) was dismissed by the Sessions Court, Rajkot, on 30.01.2021.

The petitioner moved the High Court under Articles 226 and 227 of the Constitution to quash these orders and seek prosecution of the IO.

1. Whether the Investigating Officer’s statement regarding the petitioner’s non-availability for investigation constituted perjury or the making of a false statement warranting prosecution under Section 340 of the Cr.P.C.

2. Whether the lower courts committed a jurisdictional or legal error in dismissing the petitioner’s application and appeal against the refusal to prosecute the IO.

The court applied Section 340 of the Code of Criminal Procedure (Cr.P.C.), which outlines the procedure for cases of perjury and offences against the administration of justice where it is "expedient in the interests of justice" that an inquiry should be made.

It also referenced Section 70 of the Cr.P.C. regarding the issuance of warrants of arrest, emphasizing that such warrants are issued based on judicial satisfaction of the material available on record.

The Court reasoned that the Trial Court had originally issued the Section 70 warrant only after being satisfyed by the material on record that the petitioner was indeed not available for investigation.

The Court observed that the petitioner failed to demonstrate how the IO’s statements in the warrant application or deposition were factually incorrect.

The High Court found that the Trial Court (in its order below Exhibit-78) and the Sessions Court had appropriately considered these factors, and there was no evidence of illegality or irregularity in their findings.

The Court concluded that the IO’s conduct did not warrant prosecution under Section 340 Cr.P.C. as the judicial issuance of the warrant confirmed the validity of the IO’s claims at the material time.

The impugned orders of the Trial Court and Sessions Court were upheld.