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2015 DIGILAW 431 (ORI)

Shankar Behera v. Nalini Prabha Sahoo

2015-07-24

S.PUJAHARI

body2015
ORDER : Heard the learned counsel for the petitioners, learned counsel for the opposite party, so also the learned counsel for the State. This criminal revision is directed against the order dated 22.9.2014 passed by the learned S.D.J.M. Bhubaneswar in ICC Case No. 341 of 2013 (Annexure-4) to be illegal, arbitrary and contrary to the law laid down in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2008) 39 OCR (SC) 188. It appears that the learned S.D.J.M. Bhubaneswar in the aforesaid case took cognizance of the offences punishable under Section 302/34 of IPC against the petitioners and summons were issued fixing 8.10.2013 for their appearance. Thereafter, as the petitioners did not respond to the summons issued through Post, on 19.11.2013 bailable warrant was issued against them fixing 19.12.2013 for production and 19.12.2013 as the bailable warrant was not executed, N.B.W. has since been issued against them. It further appears that the petitioners in the meantime approached this Court in a petition under Section 482, Cr. P.C. to quash the order dated 19.9.2013 passed by the, learned S.D.J.M. Bhubaneswar taking cognizance of the offence under Sections 302/34 IPC and the subsequent order dated 19.12.2013 issuing N.B.W. against the petitioners wherein this Court though did not interfere with the quashing of cognizance and also subsequent order of issuance of N.B.W. gave liberty to the petitioners to surrender and move or bail before the trial court. Thereafter, the petitioners instead of complying with the same, filed a petition under Section 438 Cr. P.C. vide BLAPL No. 1769 of 2014 for their release on bail which was disposed of wherein this Court though was not inclined to grant anticipatory bail to the petitioners, however gave liberty to the petitioner to move for recall on the N.B.W issued against them in view of the law laid down in the case of Inder Mohan Goswami (supra). The petitioners, thereafter, through their advocate appeared in pursuance of the same and made a motion before the learned S.D.J.M. Bhubaneswar to recall the N.B.W. issued against them which was rejected by the trial court considering the fact that the petitioners are at fault in appearing in the court and they cannot hide on the ground of personal liberty. The petitioners, in this criminal revision, challenges the same. The petitioners, in this criminal revision, challenges the same. Learned counsel appearing for the petitioners submits that in view of the law laid down in the case of Inder Mohan Goswami (supra), particularly there being no material that the petitioners are avoiding to appear on receipt of the summons, the court concerned could not have issued the N.B.W. more particularly when the bailable warrant was issued and there was no report from the police with regard to the petitioners avoided such bailable warrant issued against them. There being no cogent and apparent reasons to issue N.B.W. the learned S.D.J.M. erred in recalling the N.B.W. on the ground that petitioners made default in appearance. The impugned order passed being contrary to materials on record, the same cannot be sustained as it reflects an exercise of jurisdiction with material irregularity, particularly in view of the law laid down in the case of Inder Mohan Goswami (supra). Learned counsel for the opposite party, however, submits that since the petitioners had not complied the order passed in a petition under Section 482 Cr. P.C. though liberty was given to them to surrender and again a petition under Section 438, Cr. P.C. was filed, the petitioner could not have moved the court concerned to recall the N.B.W. issued against them even though liberty was given to them in the petition under Section 438, Cr. P.C. Furthermore, in this case N.B.W. issued cannot be said to have been issued at the first instance inasmuch as the same was issued only after the petitioners avoiding to appear in pursuance to the summons and also the bailable warrant, the ratio laid down in the case of Inder Mohan Goswami (supra) is of no assistance for assailing the impugned order. Hence, considering the aforesaid, he submits that the impugned order needs no interference. It is true that the petitioners had moved for a petition to quash the order of cognizance and also subsequent order of issuance of N.B.W. vide CRLMC No. 1085 of 2014 in which this Court was not inclined to interfere with the same and did not allow to quash the order of cognizance and issuance of N.B.W. but gave liberty to surrender. But, thereafter, in a 438, Cr. P.C. petition, this Court granted them liberty to move for recall of the N.B.W. without appearing there. But, thereafter, in a 438, Cr. P.C. petition, this Court granted them liberty to move for recall of the N.B.W. without appearing there. The petitioners having done so, it cannot be said that thereafter the petitioner is not at liberty to challenge the impugned order passed refusing to recall the N.B.W. as no such liberty was given to him in the 482, Cr. P.C. petition. Section 87 of the Code of Criminal Procedure authorizes the court which is empowered to issue summons for appearance of any person, issue a warrant for his arrest at the first instance or after issuance of summons for his appearance and, before the date of appearance, but the same can only be issued if the court sees the reason to believe that the accused has absconded or will not obey the summons or he fails to appear in pursuance of the summons served without any reasonable excuse. But for issuance of warrant for appearance the court must record reasons. The Hon'ble Apex Court in the case of Inder Mohan Goswami (supra) have held that 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 and in complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint and if the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant and in the third instance, only after being satisfied of the fact that the accused is avoiding the Court's proceeding intentionally, the process of non-bailable warrant should be resorted to inasmuch as the personal liberty is paramount. Therefore, held that the power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and social 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. The Court should try to maintain proper balance between il1dividual liberty and the interest of the public and the State while issuing non-bailable warrant. The Court should try to maintain proper balance between il1dividual liberty and the interest of the public and the State while issuing non-bailable warrant. Therefore, the statute as well as the law laid down in the case of Inder Mohan Goswami (supra) mandate the court not to issue the non-bailable warrant at the first instance to procure the attendance of the accused person in a complaint case. However, learned counsel for the opposite party submits that since it was not issued at the first instance, but issued after the issuance of summons followed by bailable warrant, the impugned order cannot be said to be not in conformity of the law laid down in the case of Inder Mohan Goswami (supra). The same is fallacious for the reasons that soon after issuance of summons without noticing the sufficiency of service, bailable warrant was issued followed by order of N.B.W. Considering the fact that here there was no material to show that the summons issued by Post were sufficient and on receipt of the summons the petitioners willfully avoided much less there was recording any reasons, N.B.W. should not have been issued in the case. The issuance, of N.B.W. in the complaint case as such appears to be not in conformity with the statutory mandate under Section 87 of the Cr. P.C. so also the law laid down in the case of Inder Mohan Goswami (supra). The learned S.D.J.M. in oblivion to the same having not interfered with such order in spite of the direction of this Court to consider the same in accordance with law, such issuance of NSW and also the subsequent order dated 22.9.2014 (Annexure-4) passed by the learned S.D.J.M. Bhubaneswar in I.C.C. Case No. 3410 of 2013 as such can very well be said to be an exercise of jurisdiction with material irregularity and cannot be sustained. Therefore, the same stands quashed. However, hereinafter, if the petitioners do not obey to the process issued earlier more particularly to the bailable warrant of arrest within four weeks hence, it shall be presumed that they have avoided to appear before the court as they have the Knowledge of issuance of such process and thereafter, the Court concerned shall be at liberty to take such coercive step against them to procure their attendance. With the aforesaid order, this criminal revision stands disposed of.