Madras High Court
Johndrose vs State Rep. By on 15 March, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/03/2007 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRL.O.P.(MD)No.10100 of 2006 Johndrose .. Petitioner Vs. State rep. By The Sub-Inspector of Police, Kaliyakkavalai Police Station, Kanyakumari District. .. Respondent Criminal Original Petition filed under Section 482 Cr.P.C., praying to set aside the non-bailable warrant issued against the petitioner in C.C.No.162 of 2004 dated 04.06.2004 on the file of the learned Judicial Magistrate No.1, Kuzhithurai. For Petitioner : Mr.G.Prabhu Rajadurai For Respondent : Mr.M.Ravishankar, ` Government Advocate (Crl.side) :ORDER
The accused in C.C.No.162 of 2004 pending on the file of the learned Judicial Magistrate No.1, Kuzhithurai has come forward with this petition under Section 482 Cr.P.C., praying for an order setting aside the non-bailable warrant dated 04.06.2004 issued by the above said Judicial Magistrate No.1, Kuzhithurai in the above said calendar case.
2. The grievance of the petitioner is that the Judicial Magistrate No.1, Kuzhithurai has not followed the procedure prescribed by law for issuing process under Section 87 of the Code of Criminal Procedure before issuing a non-bailable warrant in a case in which the petitioner stands charged for bailable offences alone.
3. The learned counsel for the petitioner, after adverting to the above said provision of law, cited a number of decisions to show that the issue of a non-bailable warrant without assigning any reason in writing and not preceded by the issue of a bailable warrant is improper and illegal and hence the non- bailable warrant is liable to be set aside.
4. The Judgments relied on by the learned counsel for the petitioner are as follows:
"(i) Nagarajan Mahadevan v. Sub Inspector of Police, Uvari Police Station, Nellai Kattabomman District reported in 1996 MLJR (Crl.) 755;
(ii) Mohan and another v. The State rep. by Sub-Inspector of Police, Sholinghur Police Station, Vellore District reported in 2000(1) MWN (Crl.) 144;
(iii) R.Sarathkumar v. The Inspector of Police, C-9, Police Station, Neelankarai, Chennai reported in 2004 MLJ (Crl) 421."
5. On the other hand, the learned Government Advocate (Criminal side) would contend that though the offences are bailable, since the accused had been absconding right from the date of registration of the case till the submission of final report, he was shown in the absconding column; that only after going through the above said particulars, the learned Judicial Magistrate No.I, Kuzhithurai chose to issue a non-bailable warrant and that since the petitioner did have an alternative remedy of moving an application before the Judicial Magistrate concerned for recalling the non-bailable warrant issued against him, he should be non-suited for the relief sought for invoking the inherent powers of the High Court under Section 482 Cr.P.C., which power is to be exercised sparingly and in the absence of effective and efficacious alternative remedy.
6. As an answer to the above said contention raised by the learned Government Advocate (Criminal side), the learned counsel for the petitioner argued that when the order sought to be quashed itself is illegal, the availability of alternative remedy will not be a bar and the same shall not be a ground on which, this Court can decline the relief sought for in this petition. The learned counsel also pointed out that there is every possibility of the petitioner being sent to the jail, if he surrenders with an application for recalling warrant.
7. This Court has given its anxious considerations to the rival submissions made on both sides. Though Section 87 of the Code of Criminal Procedure enables the Judicial Magistrate to issue a warrant in a summons case, it enjoins a duty on the Court to records its reasons in writing before issuing a warrant for the arrest of the accused. Thiru. Justice N.ARUMUGHAM, Judge of Madras High Court as he then, was opined in the first of the cases cited above that a Magistrate before issuing process should record his reasons in writing. Thiru.Justice S.M.SIDICKK, another Judge of Madras High Court, in the second of the Judgments quoted above by the learned counsel for the petitioner, has directed that the non-bailable warrant issued in similar circumstances should be recalled. Thiru.Justice A.K.RAJAN, another Judge of the same High Court, in the third of the Judgments quoted above, has made the following observations:
"Non-bailable warrant issued without a preceding bailable warrant where the offence is bailable, is not in accordance with the scheme of the criminal procedure code and hence illegal. Therefore, while exercising the power conferred under Section 87 Crl.P.C. and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant (including the endorsement provided under Section 71, Crl.P.C.). If the person does not appear before the Court even after execution of bailable warrant, then, and only then the Magistrate may issue a non-bailable warrant."
8. It appears that Crime No.416 of 2003 was registered on the file of the respondent for alleged offences under Sections 147 and 363 IPC and on completion of investigation, the respondent submitted a final report for the above said offences which was taken on file as C.C.No.162 of 2004 by the learned Judicial Magistrate No.I, Kuzhithurai. It is also not in dispute that the petitioner's name did not find a place in the original first information report and only in the charge sheet, his name was shown in the absconding column. It is not the case of the prosecution that he was arrested earlier and released on bail. Under these circumstances, the learned Judicial Magistrate No.I, Kuzhithurai, even before issuing a summons followed by a bailable warrant and without assigning any reason, seems to have issued a non-bailable warrant for the arrest and production of the petitioner herein. Therefore, this Court is in complete agreement with the submissions made by the learned counsel for the petitioner that there was non-application of mind, deviation from the procedure prescribed for issuing process and failure to assign reasons for issuing a non-bailable warrant at the first instance and hence the non-bailable warrant issued against the petitioner herein is illegal and liable to be set aside. This Court is not in a position to accept the contention of the learned Government Advocate (Criminal side) that the availability of alternative remedy is enough to reject the present prayer made by the petitioner for setting aside the non-bailable warrant especially, when the proceeding sought to be set aside is illegal.
9. For all the reasons stated above, this Court comes to a conclusion that the criminal original petition succeeds and the same is allowed. The Non- bailable warrant issued by the learned Judicial Magistrate No.I, Kuzhithurai dated 04.06.2004 in C.C.No.162 of 2004 is hereby set aside. The learned Judicial Magistrate No.I, Kuzhithurai is directed to recall the non-bailable warrant issued against the petitioner herein and allow the petitioner to appear before the learned Judicial Magistrate on the hearing dates, after executing a bond with or without sureties, as the learned Judicial Magistrate may decide for his appearance. The petitioner is directed to appear before the learned Judicial Magistrate No.I, Kuzhithurai on the next hearing date fixed by the said Court in C.C.No.162 of 2004 without fail.
To
1.The Judicial Magistrate No.I, Kuzhithurai.
2.The Sub-Inspector of Police, Kaliyakkavalai Police Station, Kanyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.