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Jharkhand High Court · body

2015 DIGILAW 866 (JHR)

Shamshad Khan v. State of Jharkhand

2015-07-28

RAVI NATH VERMA

body2015
Order The petitioner has challenged the legality of the order dated 30.03.2015 passed by Shri B.K. Lal, Judicial Magistrate, Dhanbad in connection with Nirsa Kalu Bathan P.S. Case No.76 of 2015 corresponding to G.R. No.897 of 2015 whereby and whereunder warrant of arrest has been issued against the petitioner. 2. The facts of the case, in nutshell, is that the Officer-in-Charge of the aforesaid police station got secret information that Jai Maa Kali Indhan Udyog, Guliyardih has collected stolen coal whereafter raid was conducted in the premises of the said industry but after seeing the police party, the persons, who were present there, fled away. The police party found two tones of coal lying in the campus and seized the coal. The proprietor of the said firm Bablu Singh and this petitioner-Shamshad Khan, who is the Manager of the said firm, were found to be involved in illegal trade of stolen coal. Accordingly, the aforesaid case was registered against the petitioner and other persons under Sections 413/414/34 of the Indian Penal Code and Section 30(ii) of the Bihar Coal Mines Act. 3. It appears from the Lower Court Record that F.I.R. of this case was presented before the court on 26.02.2015 and on 30.03.2015 the Investigating Officer of the case filed a petition before the said court for issuance of warrant of arrest against the petitioner and other accused persons on the ground that they are evading arrest. Accordingly, the warrant of arrest was issued. 4. Mr. Altamash Khan, learned counsel for the petitioner assailing the order, by which warrant of arrest was issued against this petitioner, submitted that the court below without application of judicial mind in a mechanical manner issued the non-bailable warrant. It was also submitted that from mere perusal of order dated 30.03.2015, it would appear that the order is non-speaking and was issued without following the mandates of Section 73 of the Code of Criminal Procedure. Therefore, the order is liable to be set aside. 5. Contrary to the aforesaid submissions, learned counsel representing the State submitted that on an application filed by the Investigating Officer for issuance of warrant of arrest as the petitioner was evading his arrest the court below issued non-bailable warrant. As such there is no illegality in the order impugned. 6. Therefore, the order is liable to be set aside. 5. Contrary to the aforesaid submissions, learned counsel representing the State submitted that on an application filed by the Investigating Officer for issuance of warrant of arrest as the petitioner was evading his arrest the court below issued non-bailable warrant. As such there is no illegality in the order impugned. 6. After hearing both the counsels for the petitioner as well as the State and after going through the record, I find that on the requisition filed by the Investigating Officer, non-bailable warrant of arrest was issued on 30.03.2015 without recording satisfaction that in the facts and circumstances it is warranted. 7. For better appreciation of the issue involved in the revision, a reference of Section 73 of the Code is necessary, which reads as follows:- 73. Warrant may be directed to 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 Section 71.” 8. From bare perusal of the above Section, it appears that it confers a duty upon the Magistrate to issue warrant of arrest of three categories of person namely (i) escaped convict (ii) a proclaimed offender (iii) a person who is accused of non-bailable offence and is evading arrest. 9. The Hon’ble Supreme Court in a case Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and Another; 2011(4) JLJR 285 (SC) while considering the issue of execution of non-bailable warrant held as follows in Paragraph 9:- 9. 9. The Hon’ble Supreme Court in a case Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and Another; 2011(4) JLJR 285 (SC) while considering the issue of execution of non-bailable warrant held as follows in Paragraph 9:- 9. “It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of 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.” 10. In a recent case “Arnesh Kumar Vs. 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.” 10. In a recent case “Arnesh Kumar Vs. State of Bihar and anr.” reported in 2014 (3) JCBJ 352 (SC), the Hon’ble Supreme Court has laid down several guidelines with respect to the arrest of an accused in Paragraph 12 which is reproduced hereinbelow:- “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 of the 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.” 11. Apparently, the court of Judicial Magistrate, Dhanbad has not considered the ratio decided in the above two judgments and in a mechanical manner passed the order without showing any reason or recording any satisfaction regarding issuance of non-bailable warrant. Apparently, the court of Judicial Magistrate, Dhanbad has not considered the ratio decided in the above two judgments and in a mechanical manner passed the order without showing any reason or recording any satisfaction regarding issuance of non-bailable warrant. The submission of learned counsel representing the State that on requisition filed by the Investigating Officer showing that the petitioner was evading arrest, non-bailable warrant was issued, appears to be against the mandates of the Section 73 of the Code. Hence, I am constrained to hold that the order of issuance of non-bailable warrant by learned Judicial Magistrate is liable to be set aside. 12. Regard being had to be facts and circumstance as discussed above, I find merit in this revision application. Accordingly, it is allowed. The order dated 30.03.2015 by which the non-bailable warrant of arrest was issued against the petitioner in connection with Nirsa Kalu Bathan P.S. Case No.76 of 2015 corresponding to G.R. No.897 of 2015 is, hereby, set aside.