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Chhattisgarh High Court · body

2015 DIGILAW 9 (CHH)

Zakir Malik v. State of Chhattisgarh

2015-01-09

SANJAY K.AGRAWAL

body2015
ORDER 1. The short, but important question falls for determination in this petition is whether learned trial magistrate is justified in straightway issuing non-bailable warrant for securing the presence of the petitioner/accused after granting application under Section 319(1) of Cr.P.C. without making an attempt to secure his presence first either by issuing summon or bailable warrant? 2. The State of Chhattisgarh through Station House Officer, Maudahapara, Raipur, on 06.11.2013 filed chargesheet against Farman Malik for commission of offence under Section 420/34 and 354A of the IPC. In said case, charges were framed against the said accused person on 02.01.2014 and thereafter on 18.02.2014 the complainant Yamini Baghel was examined and simultaneously the prosecution filed an application under Section 319 of Cr.P.C. for arraigning the present petitioner as co-accused in said criminal case. On 05.03.2014, after considering the said application, the trial court allowed the same and directed issuance of non-bailable warrant of arrest against the present petitioner. Thereafter, the petitioner has filed this petition challenging the said impugned order dated 05.03.2014. 3. Smt. Fouzia Mirza, learned counsel appearing for the petitioner would submit that the trial magistrate is wholly unjustified in straightway issuing non-bailable warrant of arrest as no attempt was made to secure his presence by way of summon/bailable warrant, and as such, it is a violative of his personal liberty guaranteed under Article 21 of the Constitution of India, and therefore, order issuing non-bailable warrant be set aside. 4. Shri Chitranjay Patel, learned counsel appearing for the respondent/State would submit that looking to the nature and gravity of offence as the petitioner is alleged to have found involved in commission of offence under Sections 420 and 354A of IPC, therefore, issuance of non-bailable warrant of arrest against the present petitioner is well merited and no interference is called upon in exercise of inherent jurisdiction under Section 482 of Cr.P.C. 5. I have heard the counsel appearing for the parties and perused the material available on record. 6. To appreciate the point involved, it will be useful to have a look at the provisions contained in Section 319 of Cr.P.C. which reads as under : “319. Power to proceed against other persons appearing to be guilty of offence. I have heard the counsel appearing for the parties and perused the material available on record. 6. To appreciate the point involved, it will be useful to have a look at the provisions contained in Section 319 of Cr.P.C. which reads as under : “319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.” A close and careful reading of sub-section (2) of Section 319 of Cr.P.C. would show, that criminal court granting an application under sub Section (1) of Section 319 of Cr.P.C. has, a discretion to best secure the attendance of accused to be arraigned, if he is not already attending the court, either by issuance of summon or by issuance of warrant that may be either bailable or nonbailable, and it is a matter which vests entirely on discretion of that court to be exercised judiciously. 7. Way back, in the year 1976, their Lordships of Supreme Court in constitution Bench decision in case of State of U.P. v. Poosu and Another, 1976 (3) SCC 1 had an occasion to consider the question of securing the attendance of accused person while granting special leave against an order of acquittal by holding as under: “Broadly speaking, the Court would take into account the various factors such as, "the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, tampering with evidence, larger interest of the public and State. (See The State v. Capt. Jagjit Singh ( AIR 1962 SC 253 ).” 8. (See The State v. Capt. Jagjit Singh ( AIR 1962 SC 253 ).” 8. In the matter of Inder Mohan Goswami and Another v. State of Uttaranchal and Others, 2007 (12) SCC 1 their Lordships of Supreme Court has held in unmistakable terms that issuance of non-bailable warrants actually interferes with personal liberty and therefore courts have to be extremely careful before issuing non-bailable warrant and laid down the principles, when non-bailable warrants should be issued which states as under : “Non-bailable warrants should be issued to bring a person to court when summons of bailable 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; * the police authorities are unable to find the person to serve him with a summon; * it is considered that the person could harm someone if not placed into custody immediately. In the later part of judgment, their Lordships cautioned the criminal court issue non-bailable warrant of arrest at first instance by directing as under : “In complaint cases, at the first instance, the court should direct serving of the summons along with 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 courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.” Their Lordships while concluding, emphasized the need of striking proper balance between individual personal liberty and societal interest/interest of public before issuing warrant by making following pertinent observation: “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 straightjacket 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.” 9. Recently, in Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Another, 2012 (9) SCC 791 it has been held that power and jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one hand and the protection of citizen from highhandedness at the at the hands of the law enforcement agencies on the other. Paragraph of report states as under : “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, interalia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.)” 10. Extremely recently, in the matter of Vikas v. State of Rajasthan, 2014 (3) SCC 321 wherein the trial court while granting an application under Section 319 of Cr.P.C., directly issued non-bailable warrant for securing attendance of accused, which was affirmed by the High Court, setting aside order of trial court and High Court and emphasizing the need to secure the attendance of accused by first issuing summons/bailable warrant, their Lordships of Supreme Court held as under : “.....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 of the Cr.P.C. 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. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Cr.P.C. 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. The court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued.....” 11. Bearing in mind the statutory provision contained in subsection(2) of Section 319 of Cr.P.C. and judged by the principles of law laid down by their Lordships of Supreme Court in abovestated cases (supra), it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he doesn't appear after service, as a last resort, non bailable warrant should be issued to secure presence of accused person. 12. If the facts of present case are examined in the light of abovestated principle of law, it would appear that the trial magistrate, after granting application under subsection (2) of Section 319 of Cr.P.C. without making an attempt to secure attendance of petitioner either by issuing summons simplicitor/bailable warrant, straightway issued non-bailable warrant of arrest, which is in teeth of subsection(2) of Section 319 of Cr.P.C. and contrary to law laid down by their Lordships of Supreme Court in abovestated cases(supra), in which it has been categorically held that in the first instance, the court should issue summons or bailable warrant to secure the attendance of accused and non-bailable warrant be issued only upon failure to secure presence of accused by summons or bailable warrant. 13. As as fallout and consequence of aforesaid discussion, the petition is allowed. 13. As as fallout and consequence of aforesaid discussion, the petition is allowed. The order passed by the trial magistrate to the extent of issuance of non-bailable warrant of arrest straightway is modified and it is directed that summons be issued against the petitioner for his appearance instead of non-bailable warrant, as the petitioner has already appeared before the court, pursuant to the interim order of this court, it is not necessary to issue fresh summons to him. He will continue to appear before that court as and when directed. 14. The petition is allowed to the extent indicated hereinabove.