Gujarat High Court
Chintan Mayankkumar Shah vs State Of Gujarat on 22 November, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/20148/2021 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20148 of 2021
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CHINTAN MAYANKKUMAR SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR H G BHAVSAR(11263) for the Applicant(s) No. 1
MR RUTURAJ NANAVATI(5624) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR.HARDIK SONI APP(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 22/11/2021
ORAL ORDER
[1] Rule. Learned APP waives service of notice of rule for and on behalf of respondent - State forthwith.
[2] By way of the present petition, the petitioner seeks quashing of impugned order dated 07.09.2020 passed by the by the learned Chief Judicial Magistrate, Mehsana, whereby the learned trial Court has issued non-bailable warrant.
[3] Heard Mr.Ruturaj Nanavati, learned advocate for the applicant and learned APP for the respondent - State.
[4] It is the submission that the applicant is facing trial for the offence punishable under Sections 406, 420 & 114 of the Indian Penal Code. Due to pandemic Covid-19 situation, the applicant as well as his advocate could not remain present before the Court, as a result, non-bailable warrant issued against the applicant. Thereafter, the applicant had preferred Page 1 of 5 Downloaded on : Wed Jan 12 03:15:48 IST 2022 R/CR.MA/20148/2021 ORDER DATED: 22/11/2021 application vide Ex.90 dated 07.09.2021 for cancellation of non-bailable warrant. After hearing the parties, the same has been rejected by the learned trial Court observing that the applicant was in habit of remaining absent on the day fixed by the Court. In the aforesaid facts, the applicant is before this Court for setting aside the order passed by the Court below.
[5] The law for issuance of Warrants has been laid down in the Code of Criminal Procedure, 1973 under Chapter VI (Part b) from Sections 70 to 81. 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. Only, when in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, should non-bailable warrants be issued. 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 civilized 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.
[6] In Inder Mohan Goswami Vs. State of Uttaranchal (supra), the Supreme Court had laid down few guidelines for the Courts with regards to issuance of non-bailable warrants: 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 Page 2 of 5 Downloaded on : Wed Jan 12 03:15:48 IST 2022 R/CR.MA/20148/2021 ORDER DATED: 22/11/2021 immediately. Further observed that a non-bailable warrant could be issued if an accused is charged with the commission of an offence of 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.
[7] In Omwati Vs. State of Uttar Pradesh, (2004) 4 SCC 425, the Hon'ble Supreme Court held that 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. First the Court should direct service of the summons alongwith the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance, should issued bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. It was also held that personal liberty is paramount; therefore Courts were cautioned at the first and second instance to refrain from issuing non-bailable warrants. 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.
[8] This Court has gone through the materials available on record as well as perused the impugned order, it appears that earlier, the applicant had tendered discharge application before the learned trial Court which came to be rejected and the same is challenged before the Sessions Court by way of Page 3 of 5 Downloaded on : Wed Jan 12 03:15:48 IST 2022 R/CR.MA/20148/2021 ORDER DATED: 22/11/2021 filing of the revision application. During the pendency of the revision application, and due to pandemic situation, the applicant did not remain present before the learned trial Court.
[9] In light of the law laid down by the Hon'ble Supreme Court as referred to above, and considering the facts and circumstances of the present case, this Court is of the considered view that the learned trial Court failed to deal with the issue raised in the application at Ex.90 and straightway without assigning proper reasons passed the impugned order, which is not sustainable in law.
[10] Under such circumstances, this Court is of the opinion that non-bailable warrant will be converted into bailable warrant on condition that the applicant shall execute personal bond of Rs.15,000/- and one surety of like amount to the satisfaction of the learned trial Court and further conditions that the applicant shall:
(i) remain present before the learned trial Court on 30.11.2021;
(ii) submit undertaking before the learned trial Court stating that he will remain present on each date of the proceedings;
(iii) not change his residential address without prior permission of the learned trial Court, and also, he shall provide his Mobile Number;
[11] This Court makes it clear that if the petitioner shall breach any of the conditions, the learned trial Court shall take appropriate steps in accordance with law.
Page 4 of 5 Downloaded on : Wed Jan 12 03:15:48 IST 2022R/CR.MA/20148/2021 ORDER DATED: 22/11/2021 [12] In the aforesaid observations and directions, the present petition stands disposed of. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(ILESH J. VORA,J) Manoj Page 5 of 5 Downloaded on : Wed Jan 12 03:15:48 IST 2022