Allahabad High Court
Ashish Kumar And Anothers vs State Of U.P. And Anothers on 24 February, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 7466 of 2020 Applicant :- Ashish Kumar And Anothers Opposite Party :- State Of U.P. And Anothers Counsel for Applicant :- Vinay Kumar Pandey,Raghvendra Tripathi Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Sri Pawan Kumar Mishra, Advocate has filed vakalatnama on behalf of opposite party no. 2, which is taken on record.
2. The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Special Session Trial No. 505 of 2019 (State Vs. Ashok Kumar and others), under Sections 323, 504, 506 of IPC and 3(2)(V) of SC/ST Act, pending in the court of learned Special Judge (SC/ST Act), Allahabad, in pursuance of charge sheet dated 30.09.2019 arising out of Case Crime No. 333 of 2019 as well as for quashing the impugned summoning order dated 13.11.2019 passed in aforesaid case.
3. Heard learned counsel for the applicants and learned A.G.A. for the State.
4. The contention of the learned counsel for the applicants is that FIR of impugned case has been lodged making false and baseless allegations and that charge sheet was filed in a cursory manner without proper investigation. The allegations regarding alleged robbery were not established during investigation and thus, no charge sheet was filed under Section 392 of IPC. It has also been pointed out by learned counsel that cognizance on impugned charge sheet was taken on 13.11.2019 and on the same day, non-bailable warrants were issued against applicant in disregard to established law. It was submitted that impugned order dated 13.11.2019 is against the provisions of law and thus, not sustainable and that considering entire allegations no prima-facie case is made out against applicants.
5. Learned A.G.A. as well as learned counsel for the complainant have opposed the application and argued that in view of allegations made in FIR and material collected during investigation, a prima facie case is made out against the applicants. It was submitted that there is sufficient relevant evidence against applicants. It was also submitted that applicants have criminal history.
6. From the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicants. The submissions made by learned counsel for the applicants relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial Court.
7. The prayer for quashing of impugned proceedings is hereby refused.
8. So far as the impugned order dated 13.11.2019 is concerned, it is apparent from the record that learned Special Judge SC/ST Act, Allahabad has taken cognizance on charge sheet by order dated 13.11.2019 and on the same date, non-bailable warrants were issued against the applicants. It is clear that neither any summons have been issued to accused-applicants nor any bailable warrants were issued to accused applicants before issuance of non-bailable warrants vide impugned order dated 13.11.2019. The issue as to when non-bailable warrants are to be issued is well settled. In case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another 2012 (9) SCC 791, it has been held that power and jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one hand and the protection of citizen from highhandedness at the hands of the law enforcement agencies on the other. It was held:
"Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.)"
In case of Vikas v. State of Rajasthan 2014 (3) SCC 321, wherein the trial court while allowing an application under Section 319 of the Cr.P.C., directly issued non-bailable warrant for securing attendance of accused, which was affirmed by the High Court, setting aside order of trial court and High Court and emphasizing the need to secure the attendance of accused by first issuing summons/bailable warrant, Their Lordships of the Supreme Court held as under :
".....This could be when firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Cr.P.C. would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case. The court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued....."
The Constitution Bench of Supreme court in the matter of State of U.P. v. Poosu and another1976 (3) SCC 1 has an occasion to consider the question of securing the attendance of accused person while granting special leave against an order of acquittal by holding as under:
"The attendance of the accused respondent can be best secured by issuing a bailable warrant or non-bailable warrant is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the Court would take into account the various factors such as, "the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, tampering with evidence, larger interest of the public and State."
The issue as to when non-bailable warrants can be issued, has been succinctly dealt with by Hon'ble Apex Court in case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, [(2007) 12 SCC 1], by emphasizing that arrest or imprisonment means deprivation of rights to individual and, thus, the courts have to be extremely careful before issuing non-bailable warrant of arrest. In the said case, the Supreme Court observed:-
"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 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 straight-jacket 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."
9. Bearing in mind the statutory provisions and the principles of law laid down by Hon'ble Supreme Court in above-stated cases, it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable warrant of arrest should be issued to secure the presence of the accused person.
10. In the instant case, it is clear that due procedure of law has not been followed while issuing non-bailable warrants against applicants and thus, the impugned order so far as it relates to issuance of non-bailable warrants against applicants-accused, the same is not in accordance with law.
11. In view of aforesaid, the directions for issuance of non-bailable warrants against accused-applicants vide impugned order dated 13.11.2019 is quashed.
12. Considering entire facts of matter, it is directed that in case the applicants surrender before court below and apply for bail within 30 days from today, the same shall be decided in accordance with settled law. For a period of 30 days from today or till the applicants surrender and move such an application for bail, whichever is earlier, no coercive process shall be taken against applicants.
13. The application is disposed of accordingly.
Order Date :- 24.2.2020 Mohit