Rajasthan High Court - Jaipur
Anil Sogani And Anr vs State Of Rajasthan Through P.P on 12 February, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R S.B. Criminal Miscellaneous Petition No.4278 of 2012. Anil Sogani and another VERSUS The State of Rajasthan Date Of Order ::: 12.02.2013 Hon'ble Mr. Justice R.S. Chauhan Mr. A.K. Gupta, Counsel for the Petitioners Mr. Javed Choudhary, Public Prosecutor for the State *** Per Court :
The petitioners have challenged the order dated 06.12.2012 passed by the learned Special Judge, SC/ST [Prevention of Atrocities Cases], Jhalawar, whereby the application moved by them under Section 70 (2) Cr.P.C., has been dismissed.
Mr. A.K. Gupta, the learned counsel for the petitioners, has pleaded that the petitioners were not arrayed as accused by the Police when it submitted the charge-sheet against the other co-accused persons. It was after the testimonies of PW-4 Ram Singh, PW-5 Hitesh Kumar, PW-10 Abdul Rahim and PW-13 Amit Meena were recorded that the prosecution filed an application under Section 319 Cr.P.C. By order dated 17.11.2012, the learned trial Court had took cognizance against the petitioners and issued non-bailable warrants of arrest against them. Since, the petitioners were aggrieved by the said order, they filed an application under Section 70 (2) Cr.P.C. for converting the non-bailable warrants into bailable one. However, by order dated 06.12.2012 the learned Judge dismissed the said application. Hence, the petition before this Court.
Relying on the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and Others [(2007) 12 SCC 1], the learned counsel has contended that as a first step, the learned Judge ought to have issued a summon. In case, the summon was not responded to, then he ought to have issued a bailable warrant. It is only after the bailable warrants could not be executed, then the learned Judge should have issued non-bailable warrants. However, in the present case, the learned Judge has issued non-bailable warrants that too when the process was being issued under Section 319 Cr.P.C. Secondly, he has also expressed an anxiety that even when persons are summoned through a bailable warrants, when they appear before the trial Court, instead of granting bail to the accused-persons, at a times, they are being sent into a judicial custody. According to him, even in the present case, when the petitioners were about to appear before the Court, they were informed that there was grave likelihood that they are likely to be sent into the judicial custody, since the offence for which they are going to stand trial is under Sections 306 I.P.C. read with Section 120-B I.P.C. Relying on the case of Sasaram Vs. State [ 1990 RCC 321] and on the case of Prakash & Others Vs. State of Rajasthan [2004 (5) WLC 641], the learned counsel has contended that once non-bailable warrant is converted into a bailable one, the learned trial Court should not refuse bail, and should not send the person to judicial custody. After all, issuance of process is merely a method to ensure that the accused-person appears before the learned trial Court and faces the trial. Therefore, when the accused is willing to undergo the trial, there is no reason for compromising with his liberty.
On the other hand, Mr. Javed Choudhary, the learned Public Prosecutor for the State, has contended that the petitioners are about to stand trial for offences under Sections 306 I.P.C. read with Section 120-B I.P.C. The offence of Section 306 I.P.C. is a grave one. Therefore, the learned Judge was certainly justified in issuing a non-bailable warrant of arrest against the petitioners.
Heard the learned counsel for the parties and perused the impugned order and considered the case law cited at the Bar.
In catena of cases, the Hon'ble Supreme Court has opined that issuance of process is merely a method to ensure that the accused-person does appear before the learned trial Court and undergoes the trial.
In the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and Others [supra], while dealing with the issuance of process, the Hon'ble Supreme Court had opined as under :-
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 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 case, 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 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 non-bailable warrant.
Admittedly, in the present case, the process was issued after invoking the power under Section 319 Cr.P.C. Admittedly, the case has been pending for some time. While issuing the process no reason has been given by the learned Judge to show as to how he has concluded that the petitioners are unlikely to stand trial when called by the learned trial Court.
Considering the fact that they were not arrayed as accused by the Police after a thorough investigation, considering the fact that the process was issued only during the pendency of the trial, it would have been better had the petitioners been summoned through a bailable warrant or through a summon.
Therefore, this Court allows this petition and quashes and set aside the orders dated 06.12.2012 and 17.11.2012 and converts the non-bailable warrants into bailable one for a sum of Rs.50,000/- [Rupees Fifty Thousand Only] and directs the petitioners to appear before the learned trial Court on 25th of February, 2013.
Already in the case of Sasaram Vs. State [supra] and in the case of Prakash & Others Vs. State of Rajasthan [supra], this Court had expressed its view that once a non-bailable warrant is converted into a bailable one, the trial Court should not refuse bail and should not send the accused-person to judicial custody. The learned trial Court is directed to keep the ratio of above mentioned cases in mind when the petitioners appear before it.
Upon disposal of the main petition, the stay application, filed therewith, does not survive; the same is also disposed of.
[R.S. Chauhan] J.
ashok/ Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W.