Allahabad High Court
Peer Mohammad vs State Of U.P. And Another on 13 September, 2022
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 67 Case :- CRIMINAL APPEAL No. - 770 of 2022 Appellant :- Peer Mohammad Respondent :- State of U.P. and Another Counsel for Appellant :- Dharmendra Kumar Counsel for Respondent :- G.A.,Mohd.Aslam Azhar Khan,Rajeev Ratan Shukla Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the appellant, learned AGA for the State and Sri Rajeev Ratan Shukla, learned counsel for respondent No. 2.
By means of the present criminal appeal under Section 14A-1, the appellant is assailing the legality and validity of the order dated 19.08.2020 and charge sheet dated 06.07.2020 as well as entire proceeding of Case No. 88 of 2020, State v. Peer Mohammad, arising out of Case Crime No. 163 of 2019, under Sections- 419, 420, 467, 468, 471, 504, 506 of IPC and Sections 3(2)5A and 3(1)S of SC/ST Act, Police Station- Pashchimi Sharira, District- Kaushambi, pending in the Court of Special Judge SC/ST Act, Kaushambi.
Learned counsel for appellant submitted that charge sheet was submitted on 19.08.2020 and on the very same date, after taking cognizance, straight away non bailable warrant has been issued against the appellant, which is bad in law. It is next submitted that while issuing non bailable warrants, it is required on the part of Magistrate concerned to record satisfaction, but in the present case, no satisfaction has been recorded as to why, while taking cognizance, non bailable warrant has been issued . It is further submitted that it is required on the part of Courts to first issue summoning order, thereafter bailable warrant, then a non-bailable warrant, if required. In support of his contention, he has placed reliance upon the judgments of this Court as well as Apex Court passed in the matters of Smt. Usha Jain and another vs. State of U.P. and another (Application U/S 482 No. 19037 of 2018 , Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 and Satender Kumar Antil vs. Central Bureau of Investigation & Anr. (Misc. Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 decided on 11.07.2022.
Learned counsels for opposite parties have vehemently opposed the submissions made by learned counsel for appellant, but could not dispute the aforesaid facts as well as legal submissions.
I have considered the submissions advanced by counsels for parties and perused the records as well as judgments of this Court as well as Apex Court passed in Smt. Usha Jain (Supra) and Satender Kumar Antil (Supra).
This Court in the matter of Smt. Usha Jain (Supra) has dealt with in detail about the issuance of summons, bailable and non-bailable warrants. Relevant paragraph of the said judgment is quoted below:-
"Learned counsel for the applicants has drawn the attention of the Court to the order-sheet of the criminal complaint case and from very perusal of the order sheet, I find that learned Magistrate before issuing bailable warrant on 27.11.2017 has not recorded his satisfaction with regard to the service of the summons upon the accused applicants.
A large number of applications under Section 482 Cr.P.C. are being filed every day challenging the summoning order, bailable and non-bailable warrants issued more than 90 days before and even such applications are filed as belatedly as after 12 months from the date of summoning order and the only excuse taken to justify the delay is that summons were not served/ received and hence no knowledge.
It is very unfortunate state of affairs at the end of the Judicial Magistrate that before proceeding to issue bailable warrant, no satisfaction is recorded regarding effective service of summons against the accused persons, which should be a condition precedent for issuing bailable warrant. In the absence of any such satisfaction being recorded, the issuance of bailable and non-bailable warrant is not justified.
Under Chapter-III of the General Rules (Criminal) regarding service of process or register the processes as maintained his circular letter being C.L.No.42/98 dated: Allahabad: 20/8/1998 has been issued which reads as under:-
"The Hon'ble court has noticed that the present system of service of summons is not effectively working and service upon the witness/ accused persons are not being effected within the period fixed by the courts. The system is effecting the speedy trial of sessions and magisterial cases. In this regard, the court has taken the following decisions for strict compliance by all :-
1. Old practice of fixing one sessions trial for three days in continuation is revived. No other sessions trial except any formal part-heard trial in which one or two formal witnesses are to be examined should be fixed on the that day.
2. The process register as mentioned in rule 12 of chapter III of G.R.Criminal be strictly maintained by all courts. A police official who is receiving the summons must state his name and number in clear block letters in columns no.5 so that the responsibility be fastened upon him.
3. Public prosecutor and D.G.C. (Criminal), as the case may be, should be asked to apply to the court for issue of summons but giving complete particulars of the witness. The summons should, thereafter, be prepared and served upon the witnesses.
4. If the police personnel are not complying with the directions of the court then appropriate action under the provision of the contempt of courts Act be initiated against them."
By issuing the aforesaid circular, the High Court has virtually taken due care of the speedy disposal of trial in criminal cases but ultimately, it appears, the circular letter (supra) is not complied with in its true spirit either at the end of Magistrates as they do not take due care to ensure that police report regarding service of summons is available on record, or the police is not at all submitting any report in most of the cases.
Laxity on the part of either Judicial Officers or on the part of police administration is a serious issue and calls for an immediate action. I, therefore, direct that the Judicial Magistrates will ensure strict compliance of the circular letter dated 20th August, 1998 (supra) mandatorily.
Let a copy of this order be circulated to all the Judicial Magistrates in the State to ensure strict compliance of the circular and recording their satisfaction with regard to the service of summons before issuing bailable or non-bailable warrants.
Registry of this Court is also directed to send a copy of this order to the Director General of Police, U.P. and to the Secretary, Home Affairs, Government of Uttar Pradesh for issuing necessary directions at their respective ends to the subordinate police officers to act in accordance with the procedure in matter of service of processes as desired under the circular letter dated 20th August, 1998 issued under General Rules (Criminal)."
Recently, in the matter of Satender Kumar Antil (Supra), Apex Court, while considering the compliance of Sections 41 and 41-A of Cr.P.C., has also considered sections 87 & 88 of Cr.P.C and reiterated the law laid down by the Apex Court in the matter of Inder Mohan Goswami (Supra) . Relevant paragraphs of the said judgment is quoted below:-
"30. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.
Section 87 and 88 of the Code "87. Issue of warrant in lieu of, or in addition to, summons.--A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest--
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure
88. Power to take bond for appearance.--When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial."
31.When the courts seek the attendance of a person, either a summons or a warrant is to be issued depending upon the nature and facts governing the case. Section 87 gives the discretion to the court to issue a warrant, either in lieu of or in addition to summons. The exercise of the aforesaid power can only be done after recording of reasons. A warrant can be either bailable or non-bailable. Section 88 of the Code empowers the Court to take a bond for appearance of a person with or without sureties.
32.Considering the aforesaid two provisions, courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued, if so warranted, as held by this Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. Despite the aforesaid clear dictum, we notice that non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the provision, which merely facilitates a discretion, which is obviously to be exercised in favour of the person whose attendance is sought for, particularly in the light of liberty enshrined under Article 21 of the Constitution. Therefore, valid reasons have to be given for not exercising discretion in favour of the said person. This Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, has held that:
"50. Civilised countries have recognised that liberty is the most precious of all the 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 24 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 procedure prescribed by law.
51. 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.
52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger 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
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.
55. 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 court's 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.
56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal 25 liberty and societal interest before issuing warrants. There cannot be any straitjacket 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.
57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing nonbailable warrant."
In the present case, facts are undisputed. After submission of charge sheet, Court below has taken cognizance vide order dated 19.08.2020 and by the same order, non-bailable warrant has also been issued against the appellant without assigning any reason. In Section 87 of Cr.P.C., it is clearly provided that while issuing summons for arrest, reasons are required to be given in writing, but without going through the same, immediate after taking cognizance, non-bailable warrant has also been issued.
This Court in the matter of Smt. Usha Jain( Supra) has held that satisfaction has to be recorded for issuance of bailable warrants and copy of said judgment has also been circulated to all the Judicial Officers in the State for strict compliance for recording satisfaction with regard to the service of summons before issuing bailable or non-bailable warrants. Recently, in the matter of Satender Kumar Antil (Supra), Apex Court, reiterating the law laid down by the Apex Court in the matter of Inder Mohan Goswami (Supra), has held in a very clear words that Courts will have to adopt the procedure for issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued, if so warranted. Therefore, it is required on the part of Judicial Officers to follow the provisions of section 87 Cr.P.C. as well as law laid down by the Courts while issuing summoning order, bailable or non-bailable warrants as the case may be. If the facts of the case require immediate issuance of bailable or non-bailable warrants while taking cognizance, it is required on the part of Magistrate to record his satisfaction.
It appears that Judicial Officers are not following the provisions of Cr.P.C. as well as law laid down by the Courts and passing orders in a very casual manner.
So far as present case is concerned, impugned order dated 19.08.2020 passed by Special Judge, SC/ST Act, Kaushambi is not in accordance with the provisions of Section 87 Cr.P.C. as well as law laid down by the Courts in the matters of Smt. Usha Jain( Supra), Satender Kumar Antil (Supra) & Inder Mohan Goswami (Supra) , therefore, the same is bad and is hereby quashed.
Special Judge, SC/ST Act, Kaushambi is directed to issue fresh summoning order in accordance with law.
Registrar General is directed to circulate this order to all the Judicial Magistrates in the State through District Judges to ensure strict compliance of provisions of Cr.P.C. as well as law laid down by the Courts while issuing summoning order, bailable or non-bailable warrants, as the case may be.
With the aforesaid observations, appeal is allowed.
No order as to costs.
Order Date :- 13.9.2022 Sartaj