Allahabad High Court
Ajeet Kumar And 2 Others vs State Of U.P. Thru. Addl. Chief Secy. ... on 25 July, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:50352 Court No. - 13 Case :- APPLICATION U/S 482 No. - 6473 of 2024 Applicant :- Ajeet Kumar And 2 Others Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko And Another Counsel for Applicant :- Rajeiu Kumar Tripathi Counsel for Opposite Party :- G.A. with Case :- APPLICATION U/S 482 No. - 6472 of 2024 Applicant :- Ajeet Kumar And 2 Others Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Civil Sectt. Lko And Another Counsel for Applicant :- Rajeiu Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Dr. L.P. Mishra, learned Senior Member of the Bar assisted by Sri Rajeiu Kumar Tripathi, Advocate alongwith Sri Shashi Kant Dixit, learned counsel for the applicants, learned AGA for the State of U.P. and Sri Pawan Kumar Mishra, Advocate, who has filed Vakalatnama on behalf of the opposite party No. 2 in the Court today, which is taken on record.
2. The main relief sought in APPLICATION U/S 482 No. 6473 of 2024 is quoted hereunder:-
"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may very graciously be pleased to set aside and quash the impugned order dated 10.05.2024, passed by learned Additional Civil Judge (Senior Division) / Judicial Magistrate, Bahraich in Case No. 51/2017 (Old Case No. 293/2002) and order dated 12.07.2024, passed by learned Additional Chief Judicial Magistrate, Bahraich pertaining to Crime No. 146 of 2001, under Sections 323, 324, 504, 506 Indian Penal Code, Police Station Gilaula, District Shravasti (Now District Bahraich), as contained in Annexure No. 1 to this application."
3. The main relief sought in APPLICATION U/S 482 No. 6472 of 2024 is quoted hereunder:-
"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may very graciously be pleased to set aside and quash the impugned order dated 03.10.2008, passed by learned Second Additional Civil Judge (Junior Division) / Judicial Magistrate, Bahraich in Case No. 386/2006 (Old Case No. 294/2002) and all other consequential orders so far as it relates to issuance of Non Bailable Warrants against the applicants as witnesses of the case pertaining to Case Crime No. 146A of 2001, under Section 323, 325, 504, 506 Indian Penal Code, P.S. Gilaula, District Shravasti Now P.S. Payagpur, District Bahraich, as contained in Annexure No. 1 to this application."
4. Facts, in brief, which are relevant for disposal of the present applications are to the effect that an FIR was lodged by the opposite party No. 2 on 08.09.2001 as Case Crime No. 146 of 2001 at about 19.30 hours at Police Station- Gilaula, District- Shravasti now Police Station- Payagpur, District- Bahraich, under Sections- 323, 324, 504, 506 IPC.
5. Another FIR was lodged from the side of the applicants as Case Crime No. 146A of 2001 on the same day i.e. 08.09.2001 under Sections 323, 325, 504, 506 IPC at 19.45 hours at the same police station. The Investigating Officer thereafter on completion of investigation prepared the charge sheets in both the cases on 03.10.2001.
6. Relevant facts related to Criminal Case No. 51/2017 (Old Case No. 293/2002), Case Crime No. 146 of 2001, which is the subject matter of the APPLICATION U/S 482 No. 6473 of 2024, are as under:-
(i) In Criminal Case No. 51/2017 (Old Case No. 293/2002), Case Crime No. 146 of 2001, on 02.03.2002, the Chief Judicial Magistrate, Shravasti took cognizance in the matter and directed to issue summons to the accused/applicants fixing 20.05.2002.
(ii) On 20.05.2002, another date was fixed directing the office to issue summons for appearance of accused/applicants fixing 03.07.2002.
(iii) On 03.07.2002, the case was adjourned fixing 26.08.2002 for preparation of copy of charge sheet and on this date, Vinay Kumar, Buddheswhar and Ajeet put their signature.
(iv) Thereafter, before the Magistrate/trial court various dates were fixed i.e. 25.09.2002, 16.11.2002, 06.01.2003, 26.02.2003, 05.04.2003, 06.05.2003, 13.06.2003, 15.07.2003, 16.08.2003, 26.09.2003, 11.11.2003, 19.12.2003, 04.02.2004, 24.03.2004, 24.05.2004, 02.07.2004, 16.08.2004. On these dates, the accused/applicants were present either personally or through their counsel.
(v) On 16.08.2004, the accused/applicants were present through their counsel and State counsel sought adjournment on the ground of non-availability of prosecution witnesses. Accordingly, the case was adjourned to 23.09.2004.
(vi) It would be apt to indicate here that till 23.09.2004, the case was proceeding in the court of Chief Judicial Magistrate, District Shravasti.
(vii) The order sheet annexed at page No. 118 of indicates that on 24.09.2004, the case was transferred to District Judgeship, Bahraich from District Shravasti in compliance of the order/letter No. 15/87/7 dated 24.10.2003 of this Court passed/issued on administrative side and the order of the District and Sessions Judge dated 29.07.2004.
(viii) The order sheet annexed at page No. 117-118 indicates that after 16.08.2004, the case was taken up on 29.03.2005.
(ix) The file of the case thereafter was received on 01.03.2005 by the A.C.J.M., District- Bahraich.
(x) On 29.03.2005, the court concerned at District Bahraich namely A.C.J.M., Bahraich passed the order, whereby, directed to issue non-bailable warrant (NBW) against the accused/applicants fixing 14.05.2005 and after this date, various orders were passed from which it is apparent that for the purposes of appearance of accused/applicants, the court concerned passed the orders to issue NBW.
(xi) The record also indicates that on account of the fact that the police concerned failed to execute NBW issued against the accused/applicants, the opposite party No. 2 approached this Court by filing an APPLICATION U/S 483 No. 430 of 2024 (Hawaldar Pandey vs. State of U.P. and others), in which, this Court on 13.06.2024 had passed the following order:-
"Shri Pawan Kumar Mishra, learned counsel for the applicant submits that the Criminal Case No.51 of 2017; State Vs. Ajeet Kumar and Others arising out of Case Crime No.146 of 2001, under Sections- 323, 324, 504, 506 I.P.C., Police Station- Gilaula, District- Shrawasti (now Bahraich) is pending for the last about 23 years and the non-bailable warrant issued in the year 2005 has not been executed till date, therefore the case is not proceeding.
Learned A.G.A. prays for and is granted three weeks' time to seek instructions as to why the non-bailable warrant issued by the trial court is not being executed and who is responsible for it. The Superintendent of Police, after making an enquiry as to what efforts have been made by the concerned police personal/ officer, for executing non-bailable warrant, shall send the instructions under his signature before the next date.
List on 02.07.2024 as fresh."
7. The facts related to Criminal Case No. 86 of 2006 (Old Case No. 294 of 2002) arising out of Case Crime No. 146A of 2001, which is subject matter of APPLICATION U/S 482 No. 6472 of 2024, are as under:-
(i) In the above noted case, the applicants are the witnesses of prosecution.
(ii) The case was transferred to District Judgeship, Bahraich in compliance of the order/letter No. 15/87/7 dated 24.10.2003 of this Court passed/issued on administrative side and the order of the District and Sessions Judge dated 29.07.2004.
(iii) The file of the case thereafter was received on 01.03.2005 by the A.C.J.M., District- Bahraich.
(iv) Thereafter, various dates were fixed in the case and it appears from the order dated 22.02.2007 that the trial court summoned the witnesses of prosecution fixing 20.03.2007.
(v) Thereafter, various dates were fixed and on 19.08.2007, bailable warrant (BW) was issued for the purposes of appearance of prosecution witnesses.
(vi) Thereafter, various dates were fixed in the case and according to the orders passed on these dates, it is apparent that the court directed to issue BW for the purposes of appearance of the witnesses of prosecution and on 13.06.2011, NBW was issued for the purposes of appearance of the witnesses, however, the police concerned could not execute NBW.
8. Dr. L.P. Mishra, learned Senior Member of the Bar stated that the case aforesaid is fixed before this Court today itself.
9. It is further stated that the court concerned has not proceeded in accordance with law, as entire process adopted by the trial court after receiving file from judgeship of District- Shravasti is contrary to the law laid down by the Hon'ble Apex Court in the case ofInder Mohan Goswami and another vs. State of Uttranchal and others reported in (2007) 12 SCC 1, as such, interference of this is required in the matter.
10. It is also stated that the accused/applicants were not aware about the proceedings in issue and they would appear before the court on the next date fixed.
11. Sri Pawan Kumar Mishra, learned counsel for the opposite party No. 2 says that the present applications itself are not maintainable in view of remedy available to the applicants under Section 70(2) Cr.P.C.
12. Considered the aforesaid facts and Chapter VI of the Code of Criminal Procedure, 1973, which provides 'Processes to Compel Appearance' and the observations made by the Hon'ble Apex Court in paragraphs 50 to 57 of the judgment passed in the case of Inder Mohan Goswami (supra), which are extracted hereunder:-
"Personal liberty and the interest of the State
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 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 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."
13. From the aforesaid facts and the documents on record including the orders passed in the case aforesaid, it is evident that the court concerned has not proceeded in the matter as per law.
14. Considering the aforesaid including the statement of the Dr. Mishra that the applicants would appear on the next fixed in above indicated cases, it is provided that the NBW issued in the aforesaid cases shall be kept in abeyance till the next date of listing fixed in the cases and in case, the applicants appear and prefer an application seeking recall of NBW/Bail, the same shall be considered strictly as per law.
15. The instant application(s) are accordingly disposed of in aforesaid terms.
Order Date :- 25.7.2024/Arun/-