Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 1073 (KAR)

Sunpal v. State of Karnataka

2014-12-11

A.N.VENUGOPALA GOWDA

body2014
ORDER 1. This petition was filed invoking the inherent power under S.482 of the Code of Criminal Procedure, 1973 (for short, the Code), to quash an Order dated 23.10.2014 issuing non-bailable warrants against the petitioners, passed in Crime No. 236 of 2014, by the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru. 2. Relevant facts to decide this petition are that case in Crime No. 236 of 2014 was registered on 12.07.2014 by the Police Inspector, CCB, (Spl. Enquiries), N.T. Pete, Bengaluru, for the offences punishable under S.34 of Karnataka Excise Act, 1965, Ss.79 and 80 of Karnataka Police Act, 1963 and S.20(b) of NDPS Act, 1985. The petitioners and six others, who were arrested, were released on bail by the Court below. Investigation of the case has not been completed and final report under S.173 of the Code has not been submitted. Petitioner Nos. 1 to 26, 28 to 31 and 35 to 54, who have been arraigned as accused Nos. 2 to 20, 22 to 27, 29, 31 to 34, 38 to 52 and 54 to 58, are the residents of the State of Gujarat. Petitioner Nos. 27, 32, 33, 34 and 55, who have been arraigned as accused Nos. 30, 35, 36, 37 and 59, are the residents of the State of Rajasthan. After release of all the accused, on bail, the Court below adjourned the case to 23.10.2014. Accused Nos. 28, 60 and 62 having appeared and accused Nos. 1, 21 and 53 having filed application, exemption was granted to them on 23.10.2014. The petitioners, who are the remaining accused, being absent and exemption application having not been filed on their behalf, non-bailable warrants having been ordered to be issued to arrest and produce them, this petition was filed. 3. The case of the petitioners is that though the crime is registered, charge-sheet having not been submitted and when they have been released on bail, there is no necessity for their appearance in the Court, i.e. before filing of the charge-sheet. Petitioners contend that it is only after submission of the charge-sheet and when cognizance is taken and process is issued, there is need for their appearance in the Court. Mr. Amar Correa, learned advocate, vehemently contended that the issuing of non-bailable warrants, even before the final report is filed is contrary to law. Petitioners contend that it is only after submission of the charge-sheet and when cognizance is taken and process is issued, there is need for their appearance in the Court. Mr. Amar Correa, learned advocate, vehemently contended that the issuing of non-bailable warrants, even before the final report is filed is contrary to law. He submitted that there being violation of Article 21 of the Constitution of India, interference with the impugned order is called for. 4. Sri B.T. Venkatesh, learned Additional SPP, did not support the impugned order. He submitted that the petitioners having been enlarged on bail, there is no need for their appearance in the Court, i.e. prior to the taking of cognizance and the issue of process. 5. S.154 of the Code deals with the information to the police and their power to investigate. After completion of investigation, a report in the form prescribed, shall be submitted as per S.173(2). During the course of investigation, where the accused persons are arrested and if they are not released, shall have to be produced before the Court for being kept in police custody or in judicial custody. Where the accused person is released on anticipatory bail under S.438 or on bail under S.437 or 439, even before the charge-sheet is filed, he will be free to be at large. 6. From the above, it is clear that there is no obligation on the part of the accused to appear before the Court before the charge-sheet is filed. Thus, the scheme of the Code makes clear, that where an accused person is released pending investigation of the crime, there is no need for him to appear before the Court, before filing of the charge-sheet. Thus, the issuance of warrants of arrest to the petitioners for their non appearance, even before the charge-sheet is filed, would amount to violation of procedure established by law. Article 21 of the Constitution is violated, since, the direction issued to arrest the accused (who have been enlarged on bail) and produce before the Court, even before the charge-sheet is filed, when there is no violation of any of the bail conditions, is contrary to the procedure established by law. 7. Article 21 of the Constitution is violated, since, the direction issued to arrest the accused (who have been enlarged on bail) and produce before the Court, even before the charge-sheet is filed, when there is no violation of any of the bail conditions, is contrary to the procedure established by law. 7. In Free Legal Aid Committee, Jamshedpur vs. State of Bihar, (1982) 3 SCC 378 , Apex Court has held, that an accused, released on bail, during investigation, need not be required to appear before the Court, until the charge-sheet is filed and the process is issued by the Court. Therein, it has been held as follows:- “We therefore, direct that whenever an accused is released on bail, he need not be required to appear before the court until the charge-sheet is filed and the process is issued by the Court.” 8. In Inder Mohan Goswami vs. State of Uttaranchal, 2007 (12) SCC 1 , Apex Court, while observing that civilized countries have recognized that personal liberty is the most precious of all human rights, has held that Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed under law and the issuance of non-bailable warrant interferes with the personal liberty, as arrest and imprisonment, means, deprivation of right of an individual and therefore, the Courts have to be extremely careful before issuing non-bailable warrants. 9. In Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Others, (2012) 9 SCC 791 , Apex Court has held as follows:- “13. We deferentially concur with these directions and emphasize that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22(1) of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice.” (Emphasis supplied) 10. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice.” (Emphasis supplied) 10. In Vikas vs. State of Rajasthan, 2014 (3) SCC 321 while holding that the Constitution of India is the grundnorm – the paramount law of the country and all other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution of India and therefore, the criminal law also derives its source and sustenance from the Constitution of India, which on one hand, guarantees life and liberty to its citizens under Article 21 and on the other hand, imposes a duty and obligation on the judges, while discharging their judicial functions to protect and promote the liberty of the citizens in the matter of issuance of non-bailable warrants and in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person, it was held that, would impair the personal guarantee to every citizen under the Constitution. While discussing the meaning of bailable offence and non-bailable offence and the circumstances in which non-bailable warrants can be issued, it has been held as follows:- “17. In the legislative history for the purposes of bail, the term bailable and non-bailable are mostly used to formally distinguish one of the two classes of cases, viz. bailable offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 of the Cr. P.C. The power under Section 319 of the Cr. P.C being discretionary must be exercised judiciously with extreme care and caution. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 of the Cr. P.C. The power under Section 319 of the Cr. P.C 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 straightjacket formula for issuance of warrants but as a general rule, unless an accused 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. The conditions for the issuance of non-bailable warrant are reiterated in the case of Inder Mohan Goswami vs. State of Uttaranchal, (2007) 12 SCC 1 and in State of U.P. vs. Poosu, (1976) 3 SCC 1 , wherein it is mentioned that:- “53. 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 firstly it is reasonable to believe that the person will not voluntarily appear in court, or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Cr. P.C. would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case.” (Emphasis supplied) 11. From the above, it is crystal clear that the Magistrate or the Sessions Judge cannot issue non-bailable warrants without assigning any specific reason for doing so. It is incumbent for the Magistrate or Sessions Judge, as the case may be, to satisfy himself as to whether non-bailable warrant should be issued on account of compelling circumstances. 12. In Free Legal Aid Committee, Jamshedpur, (supra) Apex Court has observed as follows:- “We hope and trust that hereafter this procedure will be followed by the Magistrates unless there are any particular reasons for not doing so.” (Emphasis supplied) 13. 12. In Free Legal Aid Committee, Jamshedpur, (supra) Apex Court has observed as follows:- “We hope and trust that hereafter this procedure will be followed by the Magistrates unless there are any particular reasons for not doing so.” (Emphasis supplied) 13. In the facts and circumstances of this case, noticed supra, the Judge of the Court below having not carefully examined the record of the case, has mechanically ordered the issuance of non-bailable warrants against the petitioners, who are on bail. The grounds urged in support of the petitioners case, noticed supra, are well founded. The impugned order is manifestly unjust and hence, calls for interference. In the result, the petition is allowed and the impugned order is quashed.