Madhya Pradesh High Court
Ramesh Chand Gupta vs State Of M.P. on 24 September, 1999
Equivalent citations: 2000(1)MPHT376
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. How does one react to a situation which permits years to slip by for carrying out of a ministerial act of issuing warrant of arrest, in spite of series of judicial orders, to be executed by the Officers-in-charge of a Police Station and further allows memory to wither so that each one at the centre-stage forgets that an accused has to be brought before the Court within a reasonable time to face his trial and treats passing of a year as if it is a day ? And how, pray, does one appreciate the attitude of gross negligence which ostracises the vision of vigil and perpetuate the sin of procrastination for a long eighteen years ? To put it plainly, it cannot be tolerated.
2. This application seeking privilege of anticipatory bail under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') would ordinarily have been disposed of without examination and contemplation; probe and deliberation; and study and scrutiny as the learned counsel for the applicant, after tremendous endeavour to convince the Court, eventually realising the unsoundness of his contentions sought permission to withdraw the application, and in usual course the prayer for withdrawal would have been allowed in open Court and that would have allowed the matter to rest but, alas, that could not be done as the factual matrix exposited a different picture - a picture quite disturbing revealing dents in the criminal adjudication system which cannot be witnessed with philosophical poise or negligent attitude of playing possum or for that matter with apathetic nictitation. Let it not be understood that I am not inclined to grant permission for withdrawing the application. The permission I do grant but I cannot be oblivious of the facts which have come to the notice of this Court. Hence, while granting permission to the learned counsel for the applicant seek his remedy as permitted under law I think it is apposite to deal with the other aspects which deserve delineation.
3. The facts in detail:
The applicant was arrayed as an accused in connection with Crime No. 268/81 of Lordganj Police Station, Jabalpur instituted for offences punishable under Sections 394 and 307 of the Indian Penal Code. Being apprehensive of arrest in the aforesaid crime the applicant filed an application for grant of anticipatory bail in the Court of Session forming subject-matter of M.Cr.C. No. 409/81 which, eventually, came to be disposed of by the learned Additional Sessions Judge who allowed the same and granted the privilege of anticipatory bail to the applicant by order dated 11-5-81. The charge-sheet was filed on 30-12-81. On that day the co-accused, Munna Pandit, was produced in custody. The applicant and another co-accused who had availed the anticipatory bail were not present. The learned Magistrate issued non-bailable warrant of arrest against them. At this juncture, it is necessary to clarify that as I have granted permission to Mr. S.L. Kochar, learned counsel for the applicant, to withdraw the petition, I am refraining myself from commenting on the propriety, validity and legality of the order passed by the learned Magistrate. The mention of the aforesaid fact has only been made to indicate that the learned Magistrate issued warrants of arrest against the present applicant.
4. To continue the narration, a sad one, the learned Magistrate directed for issuance of warrant on 30-12-81 but the same was not issued on that date. The learned Magistrate kept on directing for issuance of non-bailable warrant of arrest against the applicant and eventually, the warrants were issued on 25-2-84 i.e., almost 26 months after the direction was passed by the learned Magistrate. As the warrants were not executed a direction for issue of fresh warrants was given on 9-5-84. As the order sheet shows, the warrants were actually issued on 26-9-86, virtually after two years from the date of issuance of the direction. On 9-1-87 again a fresh non-bailable warrant of arrest was issued. On 30-1-88 as the order-sheet reflects that the record of the case was not received from the Court of Session and the matter was adjourned. The position remained the same till 2-3-90. On 24-5-90 the record was received and a non-bailable warrant of arrest was directed to be issued. This direction was repeated on 9-8-90, 1-11-90, 3-1-91, 8-3-91, 25-1-91, 16-8-91, 19-11-91, 22-2-92, 28-5-92, and eventually, the warrant was issued on 21-12-92. On 5-1-93 the warrant against Ramesh Chand was received back unserved. On 6-1-93 the learned Magistrate directed for issuance of non-bailable warrant of arrest against Ramesh Chand. On 8-1-93 the warrant against Ramesh Chand was received back and the learned Magistrate committed the case to the Court of Session observing that it was an old pending case. He did not take any action against Ramesh Chand under Section 299 of the Cr.P.C.. The learned Sessions Judge by order dated 8-7-93 issued a non-bailable warrant of arrest against Ramesh Chand which was actually issued on 10-9-93. As the warrant could not be executed fresh warrants were issued against him. On 25-6-94 the case was split up and the trial continued thereafter. On 31-7-97 the learned trial Judge declared Ramesh Chand as an absconder ad a direction was given for issue of permanent non-bailable warrant of arrest against him. Thereafter, the trial continued against the co-accused, Rajpal Singh, and ultimately judgment was pronounced on 27-4-98.
5. This being the chronology of events one feels constrained to make observations. In a way it has become necessary. As has been indicated above the learned Magistrate directed issuance of warrant of arrest on 30-12-81 on the first occasion but the warrants were actually issued on 25-2-84. Twenty six months delay for carrying out an order of issuance of warrant is enormous and, in fact, shocking. It is understandable that it may not be possible on the part of a learned Magistrate to verify on the next date whether the warrants as an actual fact have been issued or not, but it is inconceivable that a learned Magistrate would go on passing orders in a mechanical and a routine manner directing issuance of non-bailable warrant of arrest without taking pains to find out why the same has not been issued. No amount of explanation would justify the delay. Orders are passed so that they are executed. An order passed by the competent Court of law has to be respected by the Court itself as well as by the others who are bound by such order. It is unfortunate that the learned Magistrate did not take pains to verify whether the non-bailable warrant of arrest issued against the accused persons were, in fact, issued or not. Similar situation occurred between 5-8-85 to 26-9-86 and 29-7-87 to 22-12-92. The delay caused on this count is unpardonable. After exhibiting such leisureliness and sluggishness from December, 1981 to January, 1993 the learned Magistrate thought it appropriate to commit the matter to the Court of Session after 11 years. A 'Yuga', was spent in an exercise of futility.
6. At this juncture, it is appropriate on my part to state that initially I was thinking for directing an enquiry for the delay in execution of the warrant of arrest and to do so I had sought the suggestions of the learned Advocate General. The S.P. Jabalpur was also directed to remain present. The learned Advocate General appearing for the State suggested inquiry may be directed to be conducted by the I.G. Police as far as the laches on the part of police is concerned. However, after going through the entire record with the assistance of the learned counsel for the parties, I thought not to dig into the past as it is unredeemable but to pave the path for future, as far as practicable, so that the justice does not become an accidentality in the hands of joss--uncertain, prolonged and unpredictable.
7. Three aspects emerge from uncurtaining of the present case, namely, the duty of the Magistrate when he passes a direction for issue of non-bailable warrant of arrest; the duty of Police while failing to execute such a warrant of arrest; and action to be taken by the Magistrate or the learned trial Judge at that stage to arrive at the conclusion that it is difficult to procure the attendance of such an accused as he has absconded. Each compartment is as important as the other.
8. As far as the first part is concerned when a Magistrate or any competent Court issues a non-bailable warrant of arrest it is obligatory on his part to supervise that the warrant, so directed to be issued, has actually been issued. If it is not issued by the adjourned date he should call for an explanation from the concerned clerk as to why the direction has not been complied with. Considering the facts and circumstances of the case, he may extend the time for issuance of non-bailable warrant of arrest but it should not become a routine matter to issue such direction without caring to scrutinise whether it has been as an actual fact issued or not. The supervision at this juncture has to be scrupulously done. If the learned Magistrate is not satisfied with the explanation offered by the concerned clerk he may take appropriate action as he may deem it fit. The investigating agency or the concerned Police Officer after receiving the non-bailable warrant of arrest should take expeditious steps to execute the warrant. If, for some reason or the other, the warrant is not executed within stipulated time, proper information should be given to the competent Court and, thereafter, the Court may issue a fresh non-bailable warrant of arrest. If, in spite of best efforts, the serving officer is not able to execute the warrant of arrest he must through the Public Prosecutor file an application for taking action under Sections 82 and 83 of the Code against the absconding accused. On such a petition being filed, the Court shall deal with the same in accordance with the law. In this context, I may profitably refer to the regulations 789 and 790 of M.P. Police Regulations which read as under:--
"789. Absconded Offenders :-- In all important cases in which the accused persons has absconded and cannot be found, an application should be made to the Magistrate having jurisdiction for warrant of arrest. On the return of the warrant unexecuted, application can be made to the Court for the issue of a proclamation under Section 87 (now Section 82), Criminal Procedure Code with a view to the adoption of the procedure in regard to proclaimed offenders laid down in Section 88 (now Sections 83 to 85) of the said Code. The application should be supported by evidence of the accused's having absconded or being in concealment. A photograph and descriptive roll of a proclaimed offender should be published in the Criminal Intelligence Gazette.
790. Action under Section 512, Cr.P.C.:-- In all serious cases, as murder, dacoity, highway robbery, or heave burglary in which the accused is known and has absconded and there is no immediate prospect of his arrest, the investigating officer should apply to a Magistrate, competent to try or commit for trial such accused to record in his absence the evidence of important witnesses, in the case [Section 512 (now Section 299), Criminal Procedure Code]. Before this can be done, formal evidence will have to be tendered that the accused has absconded or is evading arrest, and that there is no immediate prospect of his capture, and the best proof of this is the proclamation under Section 87 (now Section 82), Criminal Procedure Code, referred to in the preceding regulation. These depositions will be admissible as evidence on the arrest of the accused, if the deponent is dead or incapable of giving evidence or cannot be found without delay, expense or inconvenience."
I may state here that while proceeding under the provisions of Sections 82 and 83 of the Code, the Magistrate may take steps under Section 299 of the Code as both the proceedings can be taken simultaneously.
9. If no steps are taken by the Police to apprehend the accused within a reasonable time the Court shall call for the Investigation Officer or the Officer-in-charge and after proceeding in accordance with law take steps against the absconding accused. The Court shall also take steps under Section 299 of the Cr.P C. within a reasonable time and try the matter or commit the same to the appropriate Court, as the case warrants.
10. I have observed that the three stages are to be completed within a reasonable period. Reasonable period would depend upon the facts of each case, but efforts should be made by the learned Magistrate as well as by the Investigating Agency that prompt steps are taken for expeditious trial. In any case it should not consume such time that will shock the conscience. It is not to be forgotten that sometimes some accused persons remain in custody and years roll by because of the absence of the co-accused. This is not a healthy situation.
Another aspect here deserves mention. It is noticed that in the instant case the Magistrate issued summons to the serving officer but he remained absent for which a bailable warrant of arrest was issued. The Court's command has to be respected. The majesty of law has to be given top priority. The mandate of the Court has to be obeyed. If the investigating officer or the officer-in-charge is unable to remain present for some reason or the other he must intimate the Public Prosecutor or the Assistant Public Prosecutor to bring it to the notice of the Court. If they work in harmony the interest of public at large is protected, there is collective good and esteem and the glory of the institution is kept high. In this context, it becomes requisite to direct that the Superintendent of Police shall do a periodical survey to find out how many non-bailable warrants of arrest are pending for execution at various Police Stations within his area and the reasons for their non-execution. He also must see whether proper steps are taken to declare the accused as absconder when a warrant of arrest has not been executed for long.
11. I would be failing in my duty if I do not sound a word of caution to the trial Magistrates and trial Judges who are the incharge of the trial. As has been indicated above the learned Magistrate has three duties to perform: (i) to see that warrants are issued as an actual fact in quite promptitude; (ii) if the warrants are not executed proper steps to be taken to declare that accused a proclaimed offender and (iii) to proceed to pass appropriate orders under Section 299 of the Code as required under the law. It should be the bounden duty of the learned District Judge of the concerned District to look into these aspects and take corrective measures.
12. I may hasten to add that no human institution is perfect. Errors do occur, but to allow errors to recur is not a part of heroism. One is required to caution oneself and make endeavours to rectify the errors. Attempt to rectify oneself is a step towards judicial discipline and divine glory. My humble attempt here is not to blame anyone but to analyse facts of the present case which is really an eye opener. I am conscious, the mistake has occurred at every level. It is better to own and accept the mistakes. It should be borne in mind that mistake can be corrected if genuine attempts are made. To avoid such repetition I think it apposite that the present order should be circulated to all the District Judges of the State so that they bring it to the notice of the concerned Magistrates as early as possible and it is accordingly ordered. The purpose behind this is that they do not commit the said folly and the matter do not get unnecessarily prolonged. Everyone should remember that procrastination is anathema to justice, collective good and constitutional conscience. Let the doctrine of slackness be buried and doctrine of alertness prevail. A copy of this order be sent to the Director General of Police of the State, who shall, in turn, circulate the same amongst all the Superintendents of Police of the State who, in their turn, bring it to the notice of the Station House Officers/Town Inspectors as the case may be. It is directed that Director General of Police shall complete the aforesaid exercise within a period of two months from the date of receipt of the order and shall file an affidavit through a competent Officer that the order has been duly complied with.
13. I have already indicated at the beginning that the learned counsel for the applicant made a prayer for withdrawal of the case. The prefatory note indicated that the matter required deliberation. The aspects which I have dealt with are not really concerned with the prayer for grant of anticipatory bail made by the applicant. Accordingly, the application is permitted to be withdrawn. For the sake of clarity I may repeat at the cost of repetition I have not expressed any opinion with regard to the merits of the case and it is open to the applicant, if he seeks, to challenge the order passed by the learned Magistrate in a competent proceeding in accordance with law.
14. Before parting with the case, I must record my appreciation for Mr. Tankha, learned Advocate General, for his fair approach to the problem and also for Miss. Alka Pandya and Mr. Ahaluwalia, learned counsel for the State, who have assisted in the case. Mr. S.L. Kochar, learned counsel for the applicant, deserves appreciation as he had argued the matter from all angles and brought it to the notice of this Court the responsibilities of the Police as stipulated in the M.P. Police Regulations and also highlighted that there were laches even on the part of the Court for the delay caused.