Ashok Singh Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/64887
CourtJharkhand High Court
Decided OnSep-01-2015
AppellantAshok Singh
RespondentState of Jharkhand
Excerpt:
in the high court of jharkhand at ranchi w.p. (cr.) no. 488 of 2015 ashok singh @ ashok kumar singh son of sri j.p.singh, resident of mango, po & ps- mango, jamshedpur …. … petitioner(s) -v e r s u s- state of jharkhand …. ... opposite party coram: - hon’ble mr. justice ravi nath verma for the petitioner(s) : - m/s. kalyan roy & sidhartha roy, advocates for the state : - j.c. to g.p.iii coram: hon’ble mr. justice ravi nath verma ----------- c.a.v. on:21. 08/2015 pronounced on:01. 09/2015 the petitioner by invoking the extra ordinary jurisdiction of this court under article 226 of the constitution of india has questioned the legality of the orders dated 28.07.2014 and 12.06.2015 passed by chief judicial magistrate, jamshedpur whereby and whereunder the warrant of arrest and proclamation have been issued against the petitioner under sections 73 and 82 of code of criminal procedure (in short „the code‟) respectively in connection with g.r. case no. 4310 of 2013 arising out of sakchi p.s. case no. 315 of 2013 instituted under sections 420/406/34 of the i.p.c.2. the prosecution case, which is necessary for the proper adjudication of the issue involved in this writ application, in short, is that at the instance of the informant, the aforesaid case was instituted with the allegation that being the owner of nalanda roadways, jamshedpur, he hired two trucks bearing registration no. jh-05w- 8017 and cg04dg8154from muskan transport for transportation of goods from the factory of m/s. sah sponge and power limited to one m/s. balmukund construction mahadevpur, phulwari, bihta, patna on 19.11.2013 but till 29.11.2013, when the goods did not reach the said destination, the informant suspecting the goods along with the trucks being stolen lodged the f.i.r.3. it appears from the ordersheet of the court below enclosed with this writ application as annexure-2 that the f.i.r. was 2 produced in court on 30.11.2013 and 04.01.2014 was fixed as a date awaiting final form but no order sheet was maintained on 04.01.2014 and on the very next date 28.07.2014, a prayer was made by the investigating officer for issuance of warrant of arrest against this petitioner, which was allowed and the warrant of arrest was issued. on the very next date i.e. on 18.08.2014, the investigating officer again filed a requisition along with unexecuted warrant of arrest for issuance of proclamation under section 82 of the code against this petitioner. the court after seeing the report of warrant of arrest, directed to issue the proclamation under section 82 of the code after expiry of one month of issuance of warrant of arrest. on 12.06.2015, the investigating officer again filed a requisition for issuance of proclamation under section 82 of the code and the same was issued by the court below.4. mr. kalyan roy, learned counsel appearing for the petitioner seriously contended that the court below without applying his judicial mind in a mechanical manner and without following the mandates issued the warrant of arrest and proclamation under section 82 of the code. it was also submitted that on mere perusal of the order sheet enclosed with this writ application, it would appear that the two orders passed by the court below are non-speaking and liable to be quashed in the light of the mandates given by the hon‟ble supreme court in the case raghuvansh dewanchand bhasin vs. state of maharashtra and another; (2011) 4 jljr385(sc).5. contrary to the aforesaid submissions, learned counsel representing the state contended that only after filing of requisitions by the investigating officer and upon being stisfied, the warrant of arrest and the proclamation under section 82 of the code were issued. as such, there is no illegality in the order impugned.6. after hearing both the counsels and after going through the record of the case and especially the certified copy of the order sheets enclosed with the writ application, i find that the court concerned without following the mandates of the hon‟ble 3 supreme court issued non-bailable warrant of arrest against the petitioner on requisition filed by the investigating officer and without there being a proper execution report of the warrant of arrest on a mere requisition filed by the investigating officer, the court below without applying judicial mind issued the proclamation.7. in the case of inder mohan goswami & anr. vs. state of uttranchal & ors.; [2008(1) j l j r82(s.c.)], the hon‟ble supreme court while dealing with the same situation observed in paragraphs 50 to 55 as follows:-“50. 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.51. 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 large 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.52. non-bailable warrant should be issued to bring a person to court when summons or bailalbe 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.53. 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 4 whether the criminal complaint or fir has not been filed with an oblique motive.54. in complaint cases, at the first instance, the court should direct serving 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 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 issuance non- bailable warrants.55. 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.”8. in the light of the guidelines given in the aforesaid case, for better appreciation, a reference of section 73 of the code, which deals with the issuance of warrant, is necessary, which reads as follows:- section 73. 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.”9. from bare perusal of the above section, it appears that it confers a duty upon the magistrate to issue warrant of arrest on three 5 categories of persons namely (i) escaped convict, (ii)proclaimed offender and (iii) a person, who is accused of non-bailable offence and is evading arrest. the hon‟ble supreme court in the case of raghuvansh dewanchand bhasin vs. state of maharashtra and another (supra) considered the issue of execution of non-bailable in paragraph 9, which reads as follows:-“9. it needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. the courts have to be extra-cautious and careful while directing issue of non- bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in article 21 of the constitution of india. at the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the state on the other. indeed, it is a complex exercise. as justice cardozo puts it “on the one side is the social need that crime shall be repressed. on the other, the social need that law shall not be flouted by the insolence of office. there are dangers in any choice”. 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.”10. apparently, the court below has not considered and followed the mandates given in the above two judgments and without applying his judicial mind in a mechanical manner passed the order without showing any reason or recording any satisfaction regarding issuance of non-bailable warrant and the proclamation under sections 82 of the code. hence, i am constrained to hold that 6 the orders issuing non-bailable warrant and the proclamation under sections 73 and 82 of the code respectively by the order impugned are liable to be set aside.11. in the result, this writ petition (cr.) is, hereby, allowed. the orders passed by the court of chief judicial magistrate, jamshedpur dated 28.07.2014 issuing non-bailable warrant and order dated 12.06.2015 by which proclamation was issued, are, hereby, quashed. the court below is directed to proceed in accordance with law. (r.n. verma, j.) jharkhand high court, ranchi dated, 1st september, 2015 ritesh/n.a.f.r.
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 488 of 2015 Ashok Singh @ Ashok Kumar Singh Son of Sri J.P.Singh, resident of Mango, PO & PS- Mango, Jamshedpur …. … Petitioner(s) -V e r s u s- State of Jharkhand …. ... Opposite Party CORAM: - HON’BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner(s) : - M/s. Kalyan Roy & Sidhartha Roy, Advocates For the State : - J.C. to G.P.III CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. ON:

21. 08/2015 PRONOUNCED ON:

01. 09/2015 The petitioner by invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India has questioned the legality of the orders dated 28.07.2014 and 12.06.2015 passed by Chief Judicial Magistrate, Jamshedpur whereby and whereunder the warrant of arrest and Proclamation have been issued against the petitioner under Sections 73 and 82 of Code of Criminal Procedure (in short „the Code‟) respectively in connection with G.R. Case No. 4310 of 2013 arising out of Sakchi P.S. Case No. 315 of 2013 instituted under Sections 420/406/34 of the I.P.C.

2. The prosecution case, which is necessary for the proper adjudication of the issue involved in this writ application, in short, is that at the instance of the informant, the aforesaid case was instituted with the allegation that being the owner of Nalanda roadways, Jamshedpur, he hired two trucks bearing registration no. JH-05W- 8017 and CG04DG8154from Muskan Transport for transportation of goods from the factory of M/s. Sah Sponge and Power Limited to one M/s. Balmukund Construction Mahadevpur, Phulwari, Bihta, Patna on 19.11.2013 but till 29.11.2013, when the goods did not reach the said destination, the informant suspecting the goods along with the trucks being stolen lodged the F.I.R.

3. It appears from the ordersheet of the court below enclosed with this writ application as Annexure-2 that the F.I.R. was 2 produced in court on 30.11.2013 and 04.01.2014 was fixed as a date awaiting final form but no order sheet was maintained on 04.01.2014 and on the very next date 28.07.2014, a prayer was made by the Investigating Officer for issuance of warrant of arrest against this petitioner, which was allowed and the warrant of arrest was issued. On the very next date i.e. on 18.08.2014, the Investigating Officer again filed a requisition along with unexecuted warrant of arrest for issuance of proclamation under Section 82 of the Code against this petitioner. The court after seeing the report of warrant of arrest, directed to issue the Proclamation under Section 82 of the Code after expiry of one month of issuance of warrant of arrest. On 12.06.2015, the Investigating Officer again filed a requisition for issuance of Proclamation under Section 82 of the Code and the same was issued by the court below.

4. Mr. Kalyan Roy, learned counsel appearing for the petitioner seriously contended that the court below without applying his judicial mind in a mechanical manner and without following the mandates issued the warrant of arrest and Proclamation under Section 82 of the Code. It was also submitted that on mere perusal of the order sheet enclosed with this writ application, it would appear that the two orders passed by the court below are non-speaking and liable to be quashed in the light of the mandates given by the Hon‟ble Supreme Court in the case Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another; (2011) 4 JLJR385(SC).

5. Contrary to the aforesaid submissions, learned counsel representing the State contended that only after filing of requisitions by the Investigating Officer and upon being stisfied, the warrant of arrest and the proclamation under Section 82 of the Code were issued. As such, there is no illegality in the order impugned.

6. After hearing both the counsels and after going through the record of the case and especially the certified copy of the order sheets enclosed with the writ application, I find that the court concerned without following the mandates of the Hon‟ble 3 Supreme Court issued non-bailable warrant of arrest against the petitioner on requisition filed by the Investigating Officer and without there being a proper execution report of the warrant of arrest on a mere requisition filed by the Investigating Officer, the court below without applying judicial mind issued the proclamation.

7. In the case of Inder Mohan Goswami & Anr. Vs. State of Uttranchal & Ors.; [2008(1) J L J R82(S.C.)], the Hon‟ble Supreme Court while dealing with the same situation observed in paragraphs 50 to 55 as follows:-

“50. 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.

51. 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 large 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.

52. Non-bailable warrant should be issued to bring a person to court when summons or bailalbe 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.

53. 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 4 whether the Criminal Complaint or FIR has not been filed with an oblique motive.

54. In complaint cases, at the first instance, the court should direct serving 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 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 issuance non- bailable warrants.

55. 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.”

8. In the light of the guidelines given in the aforesaid case, for better appreciation, a reference of Section 73 of the Code, which deals with the issuance of warrant, is necessary, which reads as follows:- Section 73. 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.”

9. From bare perusal of the above Section, it appears that it confers a duty upon the Magistrate to issue warrant of arrest on three 5 categories of persons namely (i) escaped convict, (ii)proclaimed offender and (iii) a person, who is accused of non-bailable offence and is evading arrest. The Hon‟ble Supreme Court in the case of Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and Another (supra) considered the issue of execution of non-bailable in paragraph 9, which reads as follows:-

“9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non- bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice”. 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.”

10. Apparently, the court below has not considered and followed the mandates given in the above two judgments and without applying his judicial mind in a mechanical manner passed the order without showing any reason or recording any satisfaction regarding issuance of non-bailable warrant and the proclamation under Sections 82 of the Code. Hence, I am constrained to hold that 6 the orders issuing non-bailable warrant and the proclamation under Sections 73 and 82 of the Code respectively by the order impugned are liable to be set aside.

11. In the result, this Writ Petition (Cr.) is, hereby, allowed. The orders passed by the court of Chief Judicial Magistrate, Jamshedpur dated 28.07.2014 issuing non-bailable warrant and order dated 12.06.2015 by which proclamation was issued, are, hereby, quashed. The court below is directed to proceed in accordance with law. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 1st September, 2015 Ritesh/N.A.F.R.