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2015 DIGILAW 165 (JHR)

Md. Kudus Ansari v. State of Jharkhand

2015-02-04

RONGON MUKHOPADHYAY

body2015
ORDER : Heard Mr. Kalyan Roy, learned counsel appearing for the petitioner and Mr. P. K. Sahay, learned A.P.P. appearing for the State. 2. In this application, the petitioner has prayed for quashing the order dated 03.06.2014 passed by Smt. Nirja Ashri, Judicial Magistrate, Bermo at Tenughat whereby and whereunder warrant of arrest has been issued against the petitioner as well as the order dated 17.06.2014 passed by the same Court by which process under Section 82 of Cr.P.C. has been issued against the petitioner in connection with Gomia P. S. Case No. 70 of 2014 corresponding to G. R. No. 575 of 2014 registered for the offences punishable under Sections 147, 148, 149, 341, 323, 324, 307, 302 of Indian Penal Code. 3. The FIR which was instituted on the basis of a Fard Beyan of the informant reveals that on 20.05.2014, the nephew of the informant namely, Safiullah Ansari was assaulted by one Wahid Ansari and on getting such information when the informant went to the house of the Wahid Ansari to complain about the alleged assault, several accused persons armed with deadly weapons assembled near the house of the informant and assaulted several persons including the informant as a result of which the nephew of the informant died. 4. After institution of the case, the Investigating Officer made an application before the learned Court below for issuance of warrant of arrest against the petitioner and vide order dated 03.06.2014 warrant of arrest was issued against the petitioner. Subsequent thereto vide -2-order dated 17.06.2014 process under Section 82 of Cr.P.C. against the petitioner was also issued. 5. The learned counsel for the petitioner has assailed the impugned orders by submitting that the order dated 03.06.2014 by which warrant of arrest was issued against the petitioner shows total non-application of mind on the part of the concerned Magistrate. He further submits that the subsequent issuance of process under Section 82 of Cr.P.C. vide order dated 17.06.2014 also reveals that the same was issued in a mechanical manner. He therefore submits that both the orders being non-speaking orders are liable to be quashed. 6. He further submits that the subsequent issuance of process under Section 82 of Cr.P.C. vide order dated 17.06.2014 also reveals that the same was issued in a mechanical manner. He therefore submits that both the orders being non-speaking orders are liable to be quashed. 6. The learned counsel for the informant, on the other hand, while relying on the counter affidavit filed by the informant has submitted that an application was made by the Investigating Officer for issuance of warrant of arrest as the petitioner was evading arrest and thus, the learned Court below did not commit any error of law while passing an order of warrant of arrest against the petitioner. He has further submitted that so far as the order dated 17.06.2014 is concerned, it would be evident from a perusal of the said order that the same was on the basis of a petition filed by the Investigating Officer with the execution report of the warrant of arrest issued and as such no illegality can be attributed to the learned court below while passing such order. 7. After hearing the learned counsel for the petitioner and the learned counsel for the State as well as the learned counsel for the informant and after going through the records, I find that on the requisition of the Investigating Officer warrant of arrest was issued on 03.06.2014 and the said order does not reflect the basis for issuance of warrant of arrest against the petitioner. It seems that the learned Judicial Magistrate, Bermo at Tenughat had mechanically on the application of the Investigating Officer passed the said order dated 03.06.2014. Immediately after the completion of 2 weeks from the date of issuance of warrant of arrest, process under Section 82 of Cr.P.C. was ordered to be issued on 17.06.2014 which also does not disclose the reasons for issuance of process under Section 82 of Cr.P.C. and the said order also appears to have been passed in a mechanical manner. In the case of “Vikas Vs. State of Rajasthan” reported in (2014) 3 SCC 321 , while enumerating the circumstances in which a -3-non-bailable warrant can be issued and also considering the judgment of the Hon'ble Supreme Court in the case of “Inder Mohan Goswami and anr. Vs. State of Uttaranchal and ors.” reported in (2007) 12 SCC 1 , it was held as follows: “17. State of Rajasthan” reported in (2014) 3 SCC 321 , while enumerating the circumstances in which a -3-non-bailable warrant can be issued and also considering the judgment of the Hon'ble Supreme Court in the case of “Inder Mohan Goswami and anr. Vs. State of Uttaranchal and ors.” reported in (2007) 12 SCC 1 , it was held as follows: “17. In the legislative history for the purposes of bail, the terms “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 very 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 methodised 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 CrPC. The power under Section 319 CrPC 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 straitjacket 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 Inder Mohan Goswami and in State of U.P. V. Poosu, 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 CrPC 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.” 8. In the case of “Raghuvansh Dewachand Bhasin Vs. State of Maharashtra and anr.” reported in 2011 (4) JLJR 385 (SC), it was held as follows: “9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of -4-liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice”. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding.” 9. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding.” 9. In the case of “Arnesh Kumar Vs. State of Bihar and anr.” reported in 2014 (3) JCBJ 352 (SC), various guidelines were laid down with respect to the arrest of an accused and for arriving at a just decision in the case at hand, it would be necessary to quote paragraph 12, which is as under: “12. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate donot authorize detention casually and mechanically. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate donot authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:- (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A ofthe IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C. (2) All police officers be provided with a check list containing specified sub-clauses under Section 41 (1) (b) (ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/ producing the accused before the Magistrate for further detention; (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial Jurisdiction; (8) Authorising detentions without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” (Emphasis supplied). 10. As has been discussed above, while passing the order dated 03.06.2014, the learned court below had mechanically passed the order without assigning any reason as to why warrant of arrest is being issued against the petitioner. 10. As has been discussed above, while passing the order dated 03.06.2014, the learned court below had mechanically passed the order without assigning any reason as to why warrant of arrest is being issued against the petitioner. The argument of the learned counsel for the informant that in the requisition given by the Investigating Officer, it was specifically stated that the petitioner was evading arrest does not cut much ice as the impugned order dated 03.06.2014 is devoid of any reason and as such the same is contrary to the settled legal principles. The order does not reflect independent application of judicial mind by the learned Magistrate as no satisfaction has been recorded while issuing warrant of arrest against the petitioner. So far as the order dated 17.06.2014 is concerned, the same has been passed within two weeks from the date of issuance of the warrant of arrest, and the same is in continuation of the order dated 03.06.2014 and since the order dated 03.06.2014 has already been held above to be not in accordance with law as such the order dated 17.06.2014 also cannot be sustained.Even otherwise, the order dated 17.06.2014 having been passed in a mechanical manner is therefore also liable to be quashed. 11. Regard being had to what has been discussed above, I do find merit in this application. This application is accordingly allowed. The order dated 03.06.2014 and the order dated 17.06.2014 passed by Smt. Nirja Ashri, Judicial Magistrate, Bermo at Tenughat by which warrant of arrest and process under Section 82 of the Cr.P.C. respectively had been issued against the petitioner in connection with Gomia P. S. Case No. 70 of 2014 corresponding to G. R. No. 575 of 2014 is hereby quashed.