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2012 DIGILAW 365 (RAJ)

Jimnai v. State of Rajasthan

2012-02-08

R.S.CHAUHAN

body2012
J.S. Chaudhary, Sr. Adv. with Pradeep Chaudhary and Siddarth Karwasra, for Respondent Hon'ble CHAUHAN, J.—The petitioners have challenged the order dated 19.12.2011 passed by the Sessions Judge, Merta District Nagaur wherein the learned Judge has allowed the application under Section 319 Cr.P.C., and has issued process against the petitioners. 2. The brief facts of the case are that on 03.09.2009, Ganga Ram, respondent No.2, had submitted a written report before the Police Station Merta City, where he had claimed that while he and his brothers, Ram Niwas and Ganesha Ram, were going to their field for over seeing the crops, when they reached Khasra No.710, the accused persons, Pappu Ram, Ramniwas and Sharda came to the said khasra in a tractor. They stopped the tractor. Carrying iron pipes and lathis, they got down from the tractor. These three persons assaulted the complainant and his brothers. When the complainant and his brothers raised hue and cry, Pappudi, the wife of the complainant, Tijani and Om Prakash rushed to their rescue. Meanwhile Ramniwas, Dhanna Ram, Teja Ram, Sharwan, Indira Shankara Ram, Shanti, Jimnai also came to the place of incident. They were armed with sharp and blunt weapons. Dhanna Ram assaulted Ramniwas; Teja Ram assaulted his mother Tijani with an axe. After Ramniwas fell, Dhanna Ram started the tractor and over ran Ramniwas with his tractor. He further alleged that Shanti, Indira and Jimnai assaulted his wife, Smt. Pappu Devi. 3. On the basis of this report, a formal FIR was registered. However, after competition of the investigation, while the police submitted a charge-sheet against the other co-accused persons, the police did not submit a charge-sheet against the present petitioners namely, Jimnai, Indra and Shankara Ram. Therefore, the complainant submitted an application under Section 119(1)(b) Cr.P.C., before the Additional Chief Judicial Magistrate for taking cognizance against the petitioners as well. Vide order dated 07.01.2010, the learned Magistrate took cognizance against the present petitioners. However, the petitioners challenged the said order before the learned Sessions Judge. The learned Sessions Judge dismissed the revision petition. Therefore, the petitioners approached this Court. Vide order dated 16.08,.2010, this Court allowed the petition and quashed and set aside the cognizance order dated 07.01.2010. Subsequently, an application under Section 319 was filed by the complainant against the petitioners for arraying them as accused persons. The learned Sessions Judge dismissed the revision petition. Therefore, the petitioners approached this Court. Vide order dated 16.08,.2010, this Court allowed the petition and quashed and set aside the cognizance order dated 07.01.2010. Subsequently, an application under Section 319 was filed by the complainant against the petitioners for arraying them as accused persons. Vide order dated 19.12.2011, the learned Judge allowed the application and has arrayed the present petitions as accused. Hence, this revision petition before this Court. 4. The learned counsel for the petitioner has confined his arguments only to the fact that learned Sessions Judge has issued arrest warrant against the petitioners. Relying upon the cases of Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors. ( AIR 2008 SC 251 ), Phula Singh vs. State of Rajasthan & Anr. (2011(2) Cr.L.R. (Raj.) 1567), and on the case of Suresh Kumar & Anr. vs. State of Rajasthan & Anr. ((2011) Cri.L.J. 4756 = 2011(4) RLW 3081) the learned counsel has contended that in the first instance summons should have been issued in order to ensure the appearance of the accused. In case, the summons were went unheeded, only then bailable warrant should have been issued. In case, the accused persons do not appear before the learned trial Court, even after the issuance of bailable warrant, then non-bailable warrants should have been issued. However, in the present case, the learned Judge has issued warrant of arrest at the first instance. Therefore, the warrant of arrest should be converted into bailable warrants. 5. In all fairness J.S. Chaudhary, the learned Senior counsel, has not opposed the stand taken by the learned counsel for the petitioners. 6. Heard the learned counsel for the parties and perused the impugned order. 7. In the case of Inder Mohan Goswami (supra), the Hon'ble Supreme Court has observed as under: Personal liberty and the interest of the State Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 48. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: * it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon; or * it is considered that the person could harm someone if not placed into custody immediately. 50. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. 51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 52. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. 53. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. 8. Keeping in mind the principles laid down by the Apex Court in the above mentioned case, this Courts is of the opinion that the non-bailable warrant issued against the petitioners should be converted into bailable one. 9. It is, therefore, directed that in case the petitioners, Jimnai W/o Shri Shankar Ram, Indra W/o Shri Sharwan Ram and Shankara Ram S/o Shri Jagmala Ram, appear before the learned Sessions Judge, Merta District Nagaur on or before 21st February, 2012 and each of them furnish bail bonds of Rs.30,000/- (Rs. Thirty Thousand), with two sureties in the like amount, to the satisfaction of the Sessions Judge, they shall be released on bail. Till then, the petitioners shall not be arrested. 10. A copy of this order shall be sent by the Deputy Registrar (Judl.) to the concerned Court. 11. With these observations, the petition is, hereby, disposed of.