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2020 DIGILAW 2086 (KAR)

Ravindra P v. State Of Karnataka

2020-10-21

SURAJ GOVINDARAJ

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JUDGMENT Suraj Govindaraj, J. - The petitioner is before this Court aggrieved by the order dated 20.09.2019 and 09.03.2020 directing to issue NBW to the petitioner who is accused No.9 in C.C.No.7559/2019 on the file of IV ACMM, Bengaluru for the alleged offences 3 WP.No.11781/2020 punishable under Sections 120(B), 201, 406, 408, 409, 420, 465, 467, 468, 471, 477(A), 506 read with Section 34 of IPC. 2. The said NBW was re-issued on 31.10.2019. However, the same could not be served. Hence, once again on 09.03.2020, NBW was issued with a proclamation that accused No.9 therein and the petitioner herein was absconding. Being aggrieved by the same, the petitioner is before this Court. 3. Sri Gowtham Bharadwaj, learned counsel appearing for Sri Suyog Herele E., learned counsel for the petitioner submits that the Magistrate ought not to have issued NBW at the first instance since the additional charge sheet in terms of which accused No.9 was brought on record was filed on 19.09.2019 and the next date was 04.10.2019. In this regard, he relied upon the decision of the Apex Court in 3.1. Inder Mohan Goswami and another versus State of Uttaranchal and others, (2007) 12 SCC 1 more particularly at paragraphs 53 and 54 thereof reads as under: 53. 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. 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. 54. 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. 3.2. Vikas versus State of Rajasthan, (2014) 3 SCC 321 paragraph 14 reads as under: 14. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. 3.2. Vikas versus State of Rajasthan, (2014) 3 SCC 321 paragraph 14 reads as under: 14. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in Inder Mohan Goswami and in Raghuvansh Dewanchand Bhasin v. State of Maharashtra wherein it has been observed that: (Inder Mohan Goswami case, SCC p.17, paras 50-51) Personal liberty and the interest of the State 50. Civilized countries is the most precious of all the human rights. The American Declaration of Independence, 1776, the French Declaration of the Rights of Men and the Citizen, 1789, the 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 our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of nonbailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, [this demands that] the courts have to be extremely careful before issuing nonbailable warrants. 3.3. Prashanth V.Boccassam vs. Ramendar Nanjangud in Criminal Petition No.5122/2014 paragraph 6 reads as under: 6. In view of the above decision, it is very much clear that even in non-bailable offence cases, at the initial stages, the Court has to issue summons and if there is a necessity to issue NBW, then only, the Court to have recourse for issuing of such NBW. The Court has to consider right of liberty of a person as a precious right guaranteed under the Constitution which are to be obliged. In view of the aforesaid decision and considering the facts of the case, it is very much clear that the Magistrate has not at all applied his mind in a judicious manner and verified as to what happened to the summons/N.B.W. issued to accused Nos.1 and 3. The order sheet produced will not depict as to what circumstances warranted the Magistrate to issued NBW against accused Nos.1 and 3. The order sheet produced will not depict as to what circumstances warranted the Magistrate to issued NBW against accused Nos.1 and 3. Therefore, I have no hesitation to set-aside the order passed by the learned Magistrate vide order dated 20.06.2014 in issuance of NBW. However, it is open to the learned Magistrate to examine the records about service of summons to accused Nos.1 and 3. If summons are not served, learned Magistrate has to issue fresh summons to accused Nos.1 and 3. If summons have been returned as refused by accused persons, then only the Magistrate is at liberty to pass NBW against accused Nos.1 and 3. 4. Relying upon the above decisions, Sri. Gowtham Bharadwaj, learned counsel for the petitioner submits that it is only in the event of the accused not appearing before the Court, NBW could be issued. The above being the preposition laid down by in the aforesaid decisions, more particularly, the decision of this Court in Criminal Petition No.5122/2014, wherein this Court set aside the order of the Magistrate without issuing notice to the complainant applying the same to the present case. 5. Smt.Rashmi Jadhav, learned HCGP, has accepted notice for respondent No.1. Without issuing notice to respondent No.2, the matter is taken up. 6. Sri Gowtham Bharadwaj, learned counsel submits that the petitioner has never evaded nor he would try to evade to appear before the Court and would cooperate with the Investigating Agency for the purpose of investigation in the matter. It is further submitted that the matter is now listed on 23.10.2020 on which date, the petitioner is willing to appear before this Court. However, on account of NBW and proclamation order, the petitioner apprehends that the petitioner may be arrested on appearance. The said order of issuance of NBW which is preventing the petitioner from appearing in the Court. 7. Though I am of the considered opinion that the order would not mere prevent the petitioner from appearing before the Court. The petitioner could always apply for bail. The said order of issuance of NBW which is preventing the petitioner from appearing in the Court. 7. Though I am of the considered opinion that the order would not mere prevent the petitioner from appearing before the Court. The petitioner could always apply for bail. In view of the fact NBW could not have issued at the first instance as held by the Hon ble Apex Court and this Court, I am of the considered view that the order dated 20.09.2019 and the subsequent order issuing NBW and the last order dated 09.03.2020 proclaiming the accused as an absconder are required to be set aside and as such, set aside as per the dicta of the above decisions. 8. The petitioner shall appear before the IV ACMM, Bengaluru in C.C.No.7559/2019 on 23.10.2020 in person and also cooperate with the Investigating Agency in the investigation of the matter. In the event of non-appearance of the petitioner on 11 WP.No.11781/2020 23.10.2020 as aforesaid, the above order stands automatically recalled. 9. The petition is partly allowed reserving liberty to the petitioner to approach this Court once again if the circumstances required.