Gujarat High Court
Rohitbhai Thakorbhai Desai vs State Of Gujarat & on 6 November, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/8415/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8415 of 2017
==========================================================
ROHITBHAI THAKORBHAI DESAI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR HARDIK A DAVE, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
MR ADIL R MIRZA, ADVOCATE for the Respondent No.3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/11/2017
ORAL ORDER
1 Mr. Dave, the learned counsel appearing for the applicant is permitted to implead Shri Bhanabhai Bapudiyabhai Patel residing at Talav Faliyu, village: Untandi, Taluka and District: Valsad, as the party respondent No.3. The cause title be amended accordingly.
2 Rule returnable forthwith. Ms. Moxa Thakkar, the learned A.P.P. waives service of notice of rule for and on behalf of the respondent No.1 State of Gujarat. Mr. Adil R. Mirza, the learned counsel has instructions to appear on behalf of the newly impleaded respondent No.3 - original complainant and he waives service of notice of rule for and on behalf of the respondent No.3.
3 By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs:
Page 1 of 7HC-NIC Page 1 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER "14 a) This Hon'ble Court be pleased to admit and allow this application;
b) This Hon'ble Court be pleased to quash and set aside order dted 14th September 2017 of Ld. Chief Judicial Magistrate, Valsad in Criminal Case No.1313 of 2017 so far as issuing warrant and directing respondent No.2 to arrest applicant and produced applicant before the Ld. Court and also be please to quash nonbailable warrant issued pursuant to the said order and any subsequent nonbailable warrant reissued pursuant to the same and also be pleased to convert the same into summons for appearance in the interest of justice.
c) Pending admission and till final disposal of this Special Criminal Application, this Hon'ble Court be pleased to stay further proceedings of Criminal Case No.1313 of 2017 pending before Ld. Chief Judicial Magistrate, Valsad nonbailable warrant issued / reissued against the present applicant in the interest of justice.
d) Pending admission and till final disposal of this Special Criminal Application, this Hon'ble Court be pleased to stay implementation and execution of NonBailable Warrant issued / reissued pursuant to order dated 14th September 2017 and subsequent orders of Ld. Chief Judicial Magistrate, Valsad in Criminal Case No.1313 of 2017 in the interest of justice.
e) This Hon'ble Court be pleased to grant such other and further relief as deems just and proper."
4 It appears from the materials on record that the respondent No.3 - original complainant lodged a private complaint in the Court of the Chief Judicial Magistrate, Valsad for the offence punishable under Sections Page 2 of 7 HC-NIC Page 2 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER 465, 467, 468, 471, 474, 177, 187, 193(2), 197, 198, 202, 203, 120B read with 34 and 114 of the Indian Penal Code. The complaint came to be registered as the Criminal Inquiry No.148 of 2012. The learned Chief Judicial Magistrate, after police inquiry under Section 202 of the Cr.P.C., thought fit to dismiss the complaint against the accused No.4 named in the complaint, whereas issued process for the offence punishable under Sections 465, 467, 468, 471 and 120B of the Indian Penal Code against the applicant herein and two other coaccused. At the time of issue of the summons, the Magistrate, simultaneously, ordered issue of non bailable warrant for the arrest of the applicant herein and other two co accused. Being dissatisfied with such order passed by the Magistrate, the applicant is here before this Court with this petition.
5 The moot question that falls for my consideration is whether the Chief Judicial Magistrate was justified in issuing nonbailable warrant at the time of passing order of issue of process against the applicant herein.
6 Section 204 of Code of Criminal Procedure, 1973 deals with the issuance of the process. It is provided that, if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summonscase, he shall issue the summons for the attendance of the accused. If the case appears to be a warrantcase, the Magistrate may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before him or some other Magistrate having jurisdiction. Therefore, subsection(1) of section 204 goes to show that ordinarily in a summons case the Magistrate is required to issue a summons, but in a warrantcase he may issue a warrant or a summons. Subsection (5) of Section 204 of the Code says very clearly that nothing in this section shall be deemed to affect the provisions of Section 87. This phraseology and the scheme Page 3 of 7 HC-NIC Page 3 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER employed and utilized in Section 204 of the Code of 1973 therefore would go to show that this section, namely section 204 of the Code does not affect the provisions of Section 87 of the Code. Precisely because of this reason a reference is required to be made to the provision contained under Section 87 of the Code. Section 87 goes to show that a Court which is empowered by this Code to issue a summons for the appearance of any person, may issue a warrant for his arrest, after recording its reasons in writing. The Court can issue a warrant straightway for the arrest of a person against whom a summons could have been issued if the court sees reason to believe that such a person has absconded or will not obey the summons. This position is clearly obtained from the provisions contained under Section 87(1) of the Code. Section 87(b) deals with the situation in which a summoned person fails to appear before the court. In the present case this Court is not concerned with the above said situation and therefore, the elaborate study or analysis of the provisions contained under Section 87(b) would not be necessary. So far as Section 87(a) of the Code is concerned, it goes to show that if the case is such in which a summons could have been issued, the Court has to record the reasons saying that the court believes that the person has absconded or will not obey the summons, before it issues a warrant against him.
7 As noticed above, Section 204(5) makes it abundantly clear that the said provisions do not affect the provisions contained under Section 87 of the Code. Therefore, upon a conjoint reading of the provisions contained under Section 204 and Section 87 of the Code it becomes abundantly clear that in any case in which the Court is empowered under the Code to issue a summons for the appearance of any person the warrant may be issued by the Court instead of a summons, if the Court sees reason to believe that such a person has absconded or will not obey the summons. Looking to this clear position emerging from the Page 4 of 7 HC-NIC Page 4 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER provisions contained under Section 204 and Section 87 of the Code of 1973, it must be accepted without hesitation that in the instant case the learned Magistrate has committed an error in issuing the nonbailable warrant against the applicant, without having satisfied that the applicant has absconded or will not obey the summons.
8 The reasons in writing would be those reasons which have been stated in Section 87 of the Code, namely that the Court sees a reason to believe that the applicant has absconded or will not obey the summons. Needless it is to say that it was never the case of the complainant that the applicant had absconded. In the same way there was absolutely no contention or even a slightest suggestion saying that the accused persons would not obey the summons.
9 In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of Inder Mohan Gaswami and anr. Vs. State of Uttaranchal and ors., reported in 2008 (1) G.L.H 603. The Court explained when nonbailable warrants should be issued, observing thus:
"53. Non-bailable warrant 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; 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 nonbailable 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 Page 5 of 7 HC-NIC Page 5 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER 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 nonbailable warrant should be resorted to.
Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing nonbailable 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 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 nonbailable 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."
10 Thus, the position of law, as explained above, makes the picture clear. The order of the Chief Judicial Magistrate of issue of the non bailable warrant is not tenable in law.
11 Mr. Mirza, the learned counsel appearing for the respondent No.3
- original complainant submitted that the accused persons are in possession and custody of the two documents which are very relevant for the purpose of trial. Unless and until, the two documents are procured, the complainant will not be able to establish his case in accordance with law. To put it in other words, according to Mr. Mirza, the two documents are very important as it goes to the root of the matter. If the nonbailable warrant has been issued with the idea to procure the two documents said to be in possession of the accused, then I am afraid it is not permissible in law. So far as this issue is concerned, I leave it to the Page 6 of 7 HC-NIC Page 6 of 7 Created On Mon Nov 06 23:16:28 IST 2017 R/SCR.A/8415/2017 ORDER complainant to avail of an appropriate legal remedy, if any, in law.
12 In the result, this application succeeds and is hereby allowed. The nonbailable warrant issued by the Chief Judicial Magistrate, Valsad is converted to bailable warrant in the sum of Rs.5,000/. The applicant shall remain present before the Chief Judicial Magistrate, Valsad on 17th November 2017 and furnish the bail.
13 With the above, this petition is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 7 of 7 HC-NIC Page 7 of 7 Created On Mon Nov 06 23:16:28 IST 2017