Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 646 (ORI)

Bata v. State of Orissa

2015-11-20

S.K.MISHRA

body2015
JUDGMENT : S.K. Mishra, J. 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' for brevity. The petitioner, being the accused in G.R. Case No. 227 of 2010 of the court of learned JMFC (P), Kujang, arising out of Kujang P.S. Case No. 88 of 2010 initiated for the alleged commission of offence under Sections 294, 323, 354, 506 of the IPC read with Section 3(1)(x)(xi) of the SC and ST (PA) Act has challenged the orders dated 18.09.2010 and 17.01.2011. The Investigating Officer prayed for issuance of non-bailable warrant against the accused-petitioner. The learned Magistrate perused the case records. He recorded that name of the accused finds place in the case diary, statement recorded under Section 161 of the Code as well as in the FIR. He further recorded that the accused is not apprehended in spite of several attempts. Hence, issued non-bailable warrant of arrested against the present petitioner. 2. The Hon'ble Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 has held that civilized countries have recognised that liberty is the most precious of all 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 the Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. The Hon'ble Apex Court held that the issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means infringement of precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrant. The Hon'ble Apex Court further held that non-bailable warrant should be issued to bring a person to court when summon or bailable warrant would be unlikely to have the desired result. The examples are that (i) it is reasonable to believe that the person will not voluntarily appear in court; or (ii) the police officer is unable to find the person to serve with summon; or (iii) it is considered that the person could harm someone if not taken to custody immediately. The examples are that (i) it is reasonable to believe that the person will not voluntarily appear in court; or (ii) the police officer is unable to find the person to serve with summon; or (iii) it is considered that the person could harm someone if not taken to custody immediately. The Hon'ble Supreme Court in the aforesaid case further held that 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 warrant should be preferred. The warrant either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to extremely serious consequences and ramifications which ensue on issuance of warrant. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. It further held that 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 warrant. There cannot be any straitjacket formula for issuance of warrant but as a general rule, unless an accused is charged with the commission of 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 warrant should be avoided. 3. However, in this case, such a procedure is not adopted. In the case of Sri Dipti Ranjan Parida @ Dilu v. State of Orissa, 2008 (II) OLR 148 this Court has the occasion to examine the requirements of the law before issuing warrant before submission of charge-sheet. This Court took the view that Section 73 of the Code provides that the learned Magistrate with a discretion to issue warrant on certain conditions. It is appropriate to take note of the aforesaid Section. It reads as follows: "73. Warrant may be directed any person.--(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable, offence and is evading arrest. It reads as follows: "73. Warrant may be directed any person.--(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable, offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section71." A Plain reading of the relevant provision reveals that none of the offences, viz., 294, 323,354, 506 of the IPC and Section 3(1)(x)(xi) of the SC and ST (PA) Act are punishable with imprisonment exceeding seven years. Further, a bare perusal of the order reveals that on the prayer of the Investigating Officer, the learned JMFC, Kujang has issued non-bailable warrant against the present petitioner. 4. In the case of State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 , the Hon'ble Apex Court has held that reasons introduce clarity in an order. It further held that reason is the heartbeat of every conclusion and without the same it becomes lifeless. It further held that reasons substitute subjectivity by objectivity. The Hon'ble Apex Court held that right to reason is an indispensable part of sound judicial system and reasons at least sufficient to indicate an application of mind to the matter before court. The Hon'ble Apex Court further held that giving reasons is that the affected party can know why decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, speaking out. 5. Applying the aforesaid observations made by the Hon'ble Supreme Court, this Court in the case of Dipti Ranjan Parida @ Dilu v. State of Orissa (Supra) held that an order issuing non-bailable warrant against a party is illegal and the said order was quashed. The entire episode can also be looked from another aspect. 5. Applying the aforesaid observations made by the Hon'ble Supreme Court, this Court in the case of Dipti Ranjan Parida @ Dilu v. State of Orissa (Supra) held that an order issuing non-bailable warrant against a party is illegal and the said order was quashed. The entire episode can also be looked from another aspect. This Court takes note of the fact that Section 41 of the Code has been amended by virtue of Code of Criminal Procedure (Amendment) Act, 2008 (5) of 2009, which took effect from 01.11.2010. In the amended provision, Sub-clause (ii), Clause (b), Sub-section (1) of Section 41 of the Code provides that the police officer is satisfied that if certain conditions are satisfied, then he, in a cognizance offence punishable with imprisonment for a term which may be less than seven years or which may extend to 7 years with or without fine, arrest a person, if the police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the offence. Secondly, it is further required that the police officer must be satisfied before such arrest is made and that it is necessary to arrest him (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured. Before making arrest, the police officer shall record while making arrest his reasons in writing. Now, interpreting this provision, the Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756 has directed that the Investigating Officer before making arrest to a person, must record his opinion. He is also required to give the reasons for which he arrived at such conclusion for arresting the accused. Now, interpreting this provision, the Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756 has directed that the Investigating Officer before making arrest to a person, must record his opinion. He is also required to give the reasons for which he arrived at such conclusion for arresting the accused. On production of the accused before Magistrate, the learned Magistrate is also required to examine whether the reasons given by the Investigating Officer is justified on the material placed before him by the I.O. Moreover, simple opinion is not sufficient. It must be supported by materials on record giving rise to such opinion. To that extent, the learned Magistrate is required to make a judicial enquiry. Then, the learned Magistrate can only authorize detention of the accused arrested. 6. Thus, keeping in view the aforesaid consideration, this Court is of the opinion that the orders passed by the learned JMFC (P), Kujang on 18.09.2010 & 17.01.2011 issuing non-bailable warrant against the present petitioner are incorrect and required to be quashed. Moreover, it is seen that on 17.01.2011, charge-sheet has been filed and cognizance has been taken. On a careful examination of the entire record, this Court is of the opinion that for the reasons recorded in the preceding paragraph, the orders dated 18.09.2010 and 17.01.2011, so far as it relates to issuance of non-bailable warrant against the petitioner are illegal and required to be quashed. Accordingly, the orders are quashed. Ultimately, it is seen that the case is lingering for quite a long time for appearance of the petitioner. However, since the petitioner has not yet surrender before the learned court below and has approached this Court for invoking its power under Section 482 of the Cr.P.C., he is directed to surrender before the learned JMFC (P), Kujang within a period of 21 working days from today. On such surrender, he may move for bail, if so advised. If any such application is filed, if there is no impediment for granting bail as per the provisions and citations referred to above, the petitioner shall be released on bail on such terms and conditions as deemed just and proper by the learned JMFC (P), Kujang. The CRLMC is accordingly disposed of.