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2015 DIGILAW 722 (JHR)

Bajrang Sahu v. State of Jharkhand

2015-06-26

RAVI NATH VERMA

body2015
ORDER : The petitioners by invoking the writ jurisdiction have questioned the legality of the order dated 02.02.2015 whereby non-bailable warrant of arrest has been issued and also the subsequent order dated 30.03.2015 whereby processes under Section 82 of the Code of Criminal Procedure (in short “the Code”) has been issued by the learned Chief Judicial Magistrate, Khunti in connection with Arki P.S. Case No. 23 of 2014 without following the mandate of the said provision. 2. At the instance of one Raju Lal Gupta, the aforesaid Arki P.S. case no. 23 of 2014 was instituted on 28.06.2014 under Section 498-A/34 of I.P.C. and also under Section 3/4 of the Dowry Prohibition Act. It is not necessary here to give the details of the allegations levelled against the petitioners in the said first information report. 3. It appears from the record that the Investigating Officer after investigation of the case filed an application on 02.02.2015 in the Court of learned Chief Judicial Magistrate, Khunti stating therein that on the basis of the investigation and supervision note, there appears to be sufficient evidences against the petitioners for filing charge-sheet, hence the prayer was made before the court to issue non-bailable warrant against the petitioners. Accordingly, N.B.W. was issued on 02.02.2015 and on the next date i.e. on 30.03.2015, the Investigating Officer while returning the non-bailable warrant issued earlier, filed another application before the court and prayed for issuance of Process under Section 82 of the Code and the court below after perusal of the application, directed to issue Processes. 4. Mr. Indrajit Sinha, learned counsel appearing for the petitioners, while assailing the order impugned submitted that the court below without recording any finding that the petitioners are evading their arrest and without following the conditions laid down under Section 73 of the Code, issued the non-bailable warrant and further without following the mandate as contemplated under Section 82 of the Code issued the processes, though the Hon?ble Supreme Court in catena of decisions has directed to every court concerned to follow the conditions and mandate given under Sections 73 and 82 of the Code. It was also submitted that the Proclamation under Section 82 of the Code can only be issued by recording its satisfaction that the person against whom warrant has been issued is either absconding or is concealing himself so that such warrant cannot be executed but the two orders have been passed without application of judicial mind and without following the guidelines given by the Hon’ble Supreme Court. 5. Learned counsel representing the State, on the other hand, argued in favour of the two orders of the court below and submitted that though the satisfaction of the court is not recorded in clear words in the order impugned, but it is apparently clear that after perusal of the application filed by the Investigating Officer, the non-bailable warrant and subsequently the proclamation were issued. Thus, there is no merit in the submission of the learned counsel for the petitioners so as to interfere with the above two orders. 6. Having regard to the facts and circumstances of the case and on perusal of the certified copy of the order-sheet as annexed with the writ application, I do not find any execution report of the non-bailable warrant issued earlier rather I find that the non-bailable warrant issued earlier was returned to the court below and prayer was made to issue Process under Section 82 of the Code. There is absolutely nothing on the record to show that the petitioners were evading their arrest or concealed themselves so that such warrant cannot be executed. Even, no satisfaction has been recorded by the learned court below. In the case of Inder Mohan Goswami & Anr. Vs. State of Uttranchal & Ors.; [2008 (1) JLJR 82 (S.C.)], the Hon’ble Supreme Court while dealing with the same situation observed in paragraphs 50 to 55 as follows:- “50. 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. 51. Just as liberty is previous 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 large 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. Both are extremely important for the survival of a civilized society. Sometimes in the large 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. 52. Non-bailable warrant should be issued to bring a person to court when summons of bailalbe 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. 53. 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. 54. In complaint cases, at the first instance, the court should direct serving of the summons alongwith 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 restored to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuance non-bailable warrants. 55. 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.” 7. Apparently, the guidelines given in the above judgment has not at all been followed by the court below while issuing non-bailable warrant and proclamation, hence I am constrained to hold that the impugned orders of the court below dated 02.02.2015 and 30.03.2015 by which non-bailable warrant and Process under Section 82 of the Code were issued respectively, are not sustainable. 8. In the result, the aforesaid Writ Petition (Cr.) is allowed and both the above orders passed by court of Chief Judicial Magistrate, Khunti in Arki P.S. Case No. 23 of 2014 are, hereby, set aside. The court below is directed to proceed in accordance with law.