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Gauhati High Court · body

2008 DIGILAW 739 (GAU)

Banis Ali v. State of Assam

2008-09-29

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Sections 482/401, Code of Criminal Procedure, the Petitioner, who is accused in Ghaygaon Police Station Case No. 61/08 (G.R. Case No. 3475/08), under Sections 457/380, IPC, has sought for setting aside and quashing, inter alia, the orders, dated 9.7.2008 and 21.7.2008, passed by the learned Chief Judicial Magistrate, Kamrup, whereby non-bailable warrant of arrest has been directed to be issued against the accused-Petitioner. 2. Heard Mr. M.U. Mondal, learned Counsel, appearing on behalf of the Petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 3. The ground of challenge to the impugned orders is that no summons were served upon the accused-Petitioner before the warrant of arrest was directed to be issued against him. What is also submitted, on behalf of the accused-Petitioner, is that the learned court below has assigned no reason for directing issuance of warrant of arrest against the present Petitioner as accused. 4. While considering the present Criminal Petition, what needs to be borne in mind is that Section 87, Code of Criminal Procedure empowers a magistrate to issue warrant in lieu of, or in addition to, summons under specified circumstances. For the purpose of clear understanding of the law, which is relevant in this case, apposite it is that one takes note of Section 87, Code of Criminal Procedure, which reads as under: 87. Issue of warrant in lieu of, or in addition to, summons. - A court may, in any case in which it is empowered by this Code to issue a summon for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest- (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summon is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 5. A careful and cautious reading of Section 87, Code of Criminal Procedure makes it abundantly clear that a court is not bound to issue, at the first stage, summons for appearance of an accused in each and every case. 5. A careful and cautious reading of Section 87, Code of Criminal Procedure makes it abundantly clear that a court is not bound to issue, at the first stage, summons for appearance of an accused in each and every case. When a court is required to issue summons for the appearance of any person as an accused, it may issue warrant for his arrest before the issue of summons or after the issue of summons, but before the time fixed for his appearance has expired, provided that the court sees reason(s) to believe that the accused has absconded or will not obey the summons meaning thereby that if an accused, according to the court, has absconded or will not obey the summons, it is within the powers of the court to issue warrant of arrest instead of summons, at the very first stage and even when a court has issued summons and if it comes to know that the accused has absconded or will not obey summons, the court has the power to issue warrant. In any of such cases, the court must, however, record reason(s), in writing, for issuing warrant. In other words, without recording reasons, in writing, the court shall not issue warrant either before issuing summons or after issuing the summons, but before the date fixed for appearance of the accused expires. Section 87 also makes it clear that a court may issue warrant, when summon is proved to have been duly served on the accused, but he fails to appear, though the accused had sufficient time, upon service of summons, to appear in the case and, further, no reasonable excuse is offered for his failure to appear. 6. Thus, Section 87 makes it possible for a court to issue warrant, instead of summons, if it is satisfied that the accused has absconded or will not obey the summons. The court may also issue warrant if, pursuant to the summons issued and served upon the accused, the accused, without any reasonable excuse, fails to appear. 7. It is, therefore, not correct to suggest, as contended, on behalf of the accused-Petitioner, that summons must be served on an accused before the court directs issuance of warrant of arrest against him. The court may also issue warrant if, pursuant to the summons issued and served upon the accused, the accused, without any reasonable excuse, fails to appear. 7. It is, therefore, not correct to suggest, as contended, on behalf of the accused-Petitioner, that summons must be served on an accused before the court directs issuance of warrant of arrest against him. It is time to make it clear that when a court, on receiving the chargesheet, under Section173(2)(i), Code of Criminal Procedure, finds that the accused has absconded, the court has no obligation to issue summons to such an accused; but before issuance of warrant of arrest. However, if the court decides to issue warrant of arrest, it must, before issuance of warrant, assign reasons irrespective of the fact as to whether the warrant has been issued at the first instance or in consequence of the failure of the accused to appear, without any lawful excuse, in the court in terms of the directions given in the summon. 8. In the case at hand, as correctly pointed out, on behalf of the accused-Petitioner, no specific ground has been assigned by the learned court below for choosing to direct issuance of warrant of arrest against the present Petitioner, as accused, in the case aforementioned. 9. Considering the matter in its entirety and in the interest of justice, it is hereby directed that the accused-Petitioner shall, within a week from today, appear in the learned court below in connection with the case aforementioned and if, on his appearance in the learned court below, the accused-Petitioner applies for bail, the learned court below shall consider and dispose of the same in accordance with law. For a period of one week from today or till the date of appearance of the accused-Petitioner in the learned court below, whichever is earlier, the warrant of arrest shall, if already issued against the accused-Petitioner, be kept in abeyance and the same shall be recalled if the accused-Petitioner appears in the learned court below as directed hereinbefore. 10. Before parting with this Criminal Petition, it is, however, made clear that if the learned court below is satisfied, for reasons to be assigned, that the accused-Petitioner had absconded, the learned court below may pass such order(s) as may be permissible in law. 11. With the above observations and directions, this criminal petition shall stand disposed of.