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2012 DIGILAW 563 (RAJ)

Sukhdev Singh v. State of Rajasthan

2012-03-01

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The present petition is filed against the order dated 16.12.2011 passed by Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar, whereby the learned Judge has issued process against the petitioners and against one Gurmukh Singh, while invoking his power under Section 319 Cr.P.C. 2. Briefly, the facts of the case are that complainant Baljeet Kaur lodged a report against petitioners and others at P.S. Gajsinghpur, District Sri Ganganagar on 27.08.2007 wherein she claimed that on 26.08.2007 at 11:00 PM the accused-petitioners and one Gurmukh Singh came armed with weapons and had taken away with them Sukhpal despite her resisting. Gagandeep went behind them and saw the accused persons giving beating to Sukhpal and narrated the whole incident to her. In the morning, dead body of Sukhpal was found. On the basis of said report, FIR was lodged and police filed chargesheet against Bhupinder Singh and submitted Final Report against petitioners. During trial, the prosecution examined its witnesses. Thereafter, the complainant, Baljeet Kaur, moved an application under Section 319 Cr.P.C. and the trial Court has taken taken cognizance against the petitioners vide order dated 16.12.2011. Hence this petition before this Court. 3. The learned counsel for the petitioners has restricted his contentions only to the point that while issuing process, the learned Judge has issued non-bailable warrant against the petitioners. According to him, at the first instance, the learned Judge should have issued summons or bailable warrant. Moreover, the learned Judge has issued arrest warrant against Gurmukh Singh. However, according to the death certificate issued by the Gram Panchayat, 56-F, Panchayat Samiti Sri Karanpur, Gurmukh Singh has expired on 11.02.2008. Therefore, the warrant of arrest has been issued against a person who is already dead. Therefore, he has requested that the arrest warrant may be converted into bailable warrant. In order to substantiate his contention, the learned counsel has relied upon the case of Lal Suraj alias Sujra Singh & Anv. vs. State of Jharkhan (2009 Cr.L.R. (SC) 1). 4. On the other hand, the learned Public Prosecutor and Mr. O.P. Rathi, for the complainant respondent No.2, Baljeet Kaur, have vehemently contended that since the case is for offence under Section 302 IPC, the learned Judge was certainly justified in issuing arrest warrant against the petitioners. vs. State of Jharkhan (2009 Cr.L.R. (SC) 1). 4. On the other hand, the learned Public Prosecutor and Mr. O.P. Rathi, for the complainant respondent No.2, Baljeet Kaur, have vehemently contended that since the case is for offence under Section 302 IPC, the learned Judge was certainly justified in issuing arrest warrant against the petitioners. As far as Gurmukh Singh is concerned, they have claimed that a verification needs to be made by the police with regard to his alleged death. Therefore, it is too early in the day to claim that the learned Judge has issued arrest warrant against a person who is already dead. 5. Heard the learned counsel for the parties. 6. In the case of Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors. ( AIR 2008 SC 251 ), 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. 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. 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. 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. 7. 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. 7. 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 warrants issued against the petitioners should be converted into bailable one. 8. Keeping in mind, the principle enunciated by the Hon'ble Apex Court, this Courts is of the opinion that the learned Judge should have ordered bailable warrants against the petitioners. Hence, this Court coverts arrest warrants into bailable warrants of Rs.30,000/- for the appearance of the petitioners before the trial Court. The learned counsel gives an undertaking to this Court that the petitioners shall appear before the learned trial Court on 20th of March, 2012. 9. As far as Gurmukh Singh is concerned, the learned trial Court is required to seek report from the concerned Police Station with regard to his alleged death on 11.02.2008. 10. With these observations, this petition is disposed of.