Allahabad High Court
Sher Singh And Another vs State Of U.P. And 2 Others on 14 November, 2019
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 23385 of 2019 Petitioner :- Sher Singh And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajay Sengar Counsel for Respondent :- G.A., Vijay Singh Sengar Hon'ble Naheed Ara Moonis,J.
Hon'ble Anil Kumar-IX,J.
Heard Shri Ajay Sengar, learned counsel for the petitioners, Shri Vijay Singh Sengar, learned counsel appearing on behalf of respondent No. 3 and learned Additional Government Advocate for the State.
By means of the instant writ petition, the petitioners have prayed for quashing of the impugned order dated 17.09.2019 passed by the learned Chief Judicial Magistrate, Jalaun at Orai in Case Crime No. 00141 of 2019, under Sections 366, 506, 328, 354 IPC, Police Station Nadigaon, district Jalaun. It is further prayed that FIR in the aforesaid case may also be quashed.
The brief facts of the case are that on 30.5.2019, an FIR was lodged under Sections 363/366 IPC by respondent No. 3 in respect of the occurrence dated 29.5.2019 against the petitioners that they came on motorcycle and taken away his niece. The persons who had witnessed the occurrence, chased the accused persons and ultimately petitioner No. 1, Sher Singh was nabbed, who confessed that he along with Vivek have taken away the victim. He further disclosed that he had left both Vivek and victim at the railway station on his motorcycle.
The victim was recovered and her statement was recorded under Section 164 Cr.P.C. on 13.6.2019 before the concerned Magistrate wherein she has disclosed that accused Vivek and Sher Singh had taken her away on motorcycle at pistol point and threatened to kill her and her brother in case she makes hue and cry. They took her to Auraiya on motorcycle and therefrom she was taken to Delhi on roadways bus by Vivek Kumar. On the way to Delhi the prosecutrix was given cold drink and after consuming it, she became unconscious. She further disclosed that at Delhi Ranu, Gullu and Govind Singh also joined accused Vivek and they were planning to sell her. At Delhi accused Vivek Singh had molested her. She also stated that as to how she reached the police is not known to her as at Delhi accused-Vivek has given some intoxicant to her and thereafter she became unconscious.
On the basis of the aforesaid statement of the victim, the investigating officer added sections, 366, 506, 328, 342, 354 IPC in the aforesaid case.
Learned counsel for the petitioners submits that the first information report lodged against the petitioners is absolutely false and concocted. There is no credible evidence with respect to the abduction of the niece of the first informant.
Learned counsel for the petitioners further submits that learned Magistrate has passed the impugned order on the basis of the application moved by the investigating officer that petitioners are not cooperating with the investigation. It is also submitted that investigation is still continuing and no report has been submitted under Section 173(2) Cr.P.C. and hence issuance of non-bailable warrant against the petitioner during the pendency of investigation is liable to be quashed. In support of his submission, learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court in State through CBI Vs. Dawood Ibrahim Kaskar and others, (2000) 10 SCC 438, wherein Hon'ble Supreme Court has held that power of issuance of non-bailable warrant can be exercised by the learned Magistrate for appearance of accused before the Court and not before the police in aid of investigation.
Learned counsel for the petitioners also submitted that on the strength of aforesaid order of Hon'ble Supreme Court, in similar matter, the coordinate Bench of this Court vide order dated 30.3.2018 has granted interim order in favour of the accused in Criminal Misc. Writ Petition No. 7833 of 2018.
Per contra, learned Additional Government Advocate has contended that impugned order has been passed by the learned Magistrate issuing non-bailable warrant after taking into account the fact that petitioners were absconding after lodging of the FIR since 16.8.2019 and the investigating officer has raided the house of the petitioners on ten dates for the arrest of the petitioners as indicated in the application moved by the investigating officer before the court concerned. Hence, under compelling circumstances the investigating officer has moved the application on 16.9.2019 requesting the court to issue non-bailable warrant and for proceedings under Section 82 Cr.P.C.
Learned Additional Government Advocate further submits that from the perusal of FIR, prima facie cognizable offence is made out against the petitioner. Hence, the FIR does not deserve to be quashed.
Perusal of the impugned order indicates that there was no interim order in favour of the petitioners and they were trying to prolong the investigation, who were involved in serious offence of kidnapping and hence learned Magistrate has rightly exercise his power issuing non-bailable warrant against them.
In Dawood Ibrahim Kaskar (Supra) Dawood Ibrahim Kaskar (Supra), police, after completing investigation, submitted composite charge sheet on 04.11.1993 before the designated Court against 198 persons showing 45 of them as absconders for commission of offence. However, on 11.11.1993, Government of India directed further investigation by the CBI. During the course of investigation, on 24.7.1995 CBI arrested one Mohd. Salim Mira Moiuddin Shaikh alias Salim Kutta, one of the absconders nominated in the charge sheet. In his confessional statement, he disclosed that respondent Nos. 2 to 7 therein had also taken active part in commission of conspiracy. On the basis of the confessional statement of Salim Kutta, police raided their hideouts to arrest them, but in vain. Thereafter CBI moved an application before the Designated Court for issuance of non-bailable warrant for their arrest, which was rejected by the Designated Court. In appeal Hon'ble Supreme Court held that warrant can be issued only for the production of the accused for appearance before the Court and not in aid of investigation.
In Dawood Ibrahim Kaskar (Supra) the investigation was completed and charge sheet submitted, whereas in the instant case, the investigation is still continuing and accused is avoiding arrest and not appearing before the police for getting his statement recorded and not cooperating with the investigation.
For better appreciation of the case of the petitioners it would be apposite to quote Section 73 Cr.P.C., which reads as under"
Warrant may be directed to any person:- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71."
From the perusal of the aforesaid provisions, it is apparent that if during investigation the investigating officer intends to arrest the person accused of the offence, he has to seek for and obtain a warrant of arrest from the Magistrate. The Magistrate is fully competent to issue non-bailable warrant to apprehend recalcitrant person who is accused of non-bailable offence and is evading arrest. In this case, the learned Magistrate has exercised his judicial discretion considering the gravity of the offence as well as taking into account the fact that petitioners are not cooperating with the investigation as successively the police had raided their premises so that they may be questioned in details regarding various facet of commission of crime. Hence, it was necessary to curtail their freedom in order to enable the investigating officer to proceed without any hindrance. Ordinarily the arrest is a part of process of investigation. As statement of the victim has been recorded showing the involvement of the petitioners in the commission of the crime, in the opinion of the investigating officer it was necessary to effectuate their arrest and in doing so he has committed no fault in moving before the Court to obtain non-bailable warrant or initiate proceedings under Section 82 Cr.P.C.
No doubt, personal liberty of a person is paramount and the Courts are not expected to issue warrant in casual manner without proper application of mind. In the instant case when the petitioners were not paying any heed to the summons, learned Magistrate has resorted to issuance of non-bailable warrant of arrest after being fully satisfied that the petitioners are avoiding to appear before the investigating officer intentionally. Instead of appearing before the investigating officer, it is the audacity of the petitioners to have approached before this court to quash the order of non-bailable warrant which is highly contemptible also.
Thus, we see no ground to quash the order dated 17.09.2019 passed by the learned Chief Judicial Magistrate, Jalaun at Orai or to quash the impugned FIR in Case Crime No. 00141 of 2019, under Sections 366, 506, 328, 354 IPC, Police Station Nadigaon, district Jalaun. The writ petition sans any merit is accordingly dismissed.
However, it is provided that in case the petitioners appear before the court concerned within four weeks from today and apply for bail in the aforesaid case, their prayer for bail shall be considered and disposed of in accordance with law.
Order Date :- 14.11.2019 Ishrat