Leeladhar and ors. Vs. State of Rajasthan and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/771363
SubjectCriminal
CourtRajasthan High Court
Decided OnMar-30-2009
Judge Mahesh Chandra Sharma, J.
Reported inRLW2009(1)Raj604
AppellantLeeladhar and ors.
RespondentState of Rajasthan and anr.
Cases ReferredInder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.
Excerpt:
- - 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. and (iii) in third circumstance, when the court is fully satisfied that the accused persons are avoiding the court's proceedings intentionally, the process of issuing the non-bailable warrant should be resorted to.mahesh chandra sharma, j.1. heard learned counsel for the parties.2. this revision petition has been filed against the order dated 27th january, 2009 passed by the civil judge (jr. div.) & judicial magistrate, 1st class, mangrol, district baran, in criminal case no. 34/2009, arising out of fir no. 137/2008 and final report no. 48/2008, whereby the learned magistrate took cognizance against the accused-petitioners for the offence under section 420, 467, 468, 471, 120-b ipc and issued non-bailable warrant.3. in short, the brief facts of the case are that the complainant-respondent no. 2 (mohammad siddiqui) submitted a complaint before the trial court against the petitioners for the offence under section 420, 467, 468, 471, 120-b ipc. the trial court sent the complaint under section 156(3) of the criminal procedure code to the police station, mangrol, district baran for registering the first information report and for investigation. the police station, mangrol registered the f.i.r. no. 137/2008 for the offence under sections 420, 467, 468, 471, 120-b ipc. after investigation, the police submitted the final report.4. the complainant-respondent no. 2 filed the protest petition. thereafter the statement under section 200 and cr.p.c. were recorded. upon that, the trial court took cognizance against the petitioners for the offence under sections 420, 467, 468, 471 and 120-b ipc vide his order dated 27.1.2009. against the said order, this revision petition has been preferred.5. the learned counsel for the petitioners mr. mahesh gupta submits that no prima-facie case is made out against the petitioners and the trial court has committed a serious error while not considering the evidence collected by the investigation authorities, who submitted a final report. in the present matter, civil litigation is pending between the parties. the case of the petitioners comes under the provisions of the transfer of property act instead of indian penal code and the trial court has not considered the ingredient of section 420, 467, 468, 471 and 120-b ipc and the order of the trial court taking cognizance is without any basis and same should be quashed. in the alternate, he has requested to this court that if this court is not inclined to quash the order of cognizance dated 27.1.2009, then the non-bailable warrant, which have bee issued by the trial court, be converted into bailable warrant in the light of judgment delivered by the apex court in the case of inder mohan goswami and anr. v. state of uttaranchal and ors. : air 2008 sc 251.(e) criminal procedure code (2 of 1974), section 73- constitution of india, art. 21-non-bailable warrant - issuance-deprived person of his liberty -must be issued with due care - circumstances in which non bailable warrant should be issued-innumerated.when non-bailable warrants should be issued.52. 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;orthe 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 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 along with the copy of the complaint. if the accused seems 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 courts 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.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 strait-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.56. 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.6. for these reasons, i do not want to interfere in the order dated 27.1.2009, by which the trial court has taken the cognizance for the offences as indicated above, but at the same time in the light of the judgment delivered by the hon'ble apex court, as indicated above and looking to the facts and circumstances of the case, i dispose of this revision petition with the following directions:(i) the non-bailable warrants issued by the trial court are converted into summons. the trial court is directed to summon the accused persons through serving of the summons along-with a copy of the complaint.(ii) if the accused persons seem to be avoiding the summons, the trial court in second circumstance should issue the bailable warrant; and(iii) in third circumstance, when the court is fully satisfied that the accused persons are avoiding the court's proceedings intentionally, the process of issuing the non-bailable warrant should be resorted to.(iv) mr. mahesh gupta, who is appearing on behalf of the accused petitioners is directed to produced the petitioners before the trial court on 15th april, 2009 and thereafter the trial court will release the petitioners on bail as per his satisfaction.(v) the trial court is further directed to expedite the trial, as early as possible.since the main revision petition has been disposed of, therefore, the stay order dated 6.3.2009 passed by this court is vacated and the stay application, filed therewith, also stands disposed of.
Judgment:

Mahesh Chandra Sharma, J.

1. Heard learned Counsel for the parties.

2. This revision petition has been filed against the order dated 27th January, 2009 passed by the Civil Judge (Jr. Div.) & Judicial Magistrate, 1st Class, Mangrol, District Baran, in Criminal Case No. 34/2009, arising out of FIR No. 137/2008 and Final Report No. 48/2008, whereby the learned Magistrate took cognizance against the accused-petitioners for the offence under Section 420, 467, 468, 471, 120-B IPC and issued non-bailable warrant.

3. In short, the brief facts of the case are that the complainant-respondent No. 2 (Mohammad Siddiqui) submitted a complaint before the trial Court against the petitioners for the offence under Section 420, 467, 468, 471, 120-B IPC. The trial Court sent the complaint under Section 156(3) of the Criminal Procedure Code to the Police Station, Mangrol, District Baran for registering the First Information Report and for investigation. The Police Station, Mangrol registered the F.I.R. No. 137/2008 for the offence under Sections 420, 467, 468, 471, 120-B IPC. After investigation, the police submitted the final report.

4. The complainant-respondent No. 2 filed the protest petition. Thereafter the statement under Section 200 and Cr.P.C. were recorded. Upon that, the trial Court took cognizance against the petitioners for the offence under Sections 420, 467, 468, 471 and 120-B IPC vide his order dated 27.1.2009. Against the said order, this revision petition has been preferred.

5. The learned Counsel for the petitioners Mr. Mahesh Gupta submits that no prima-facie case is made out against the petitioners and the trial Court has committed a serious error while not considering the evidence collected by the investigation authorities, who submitted a final report. In the present matter, civil litigation is pending between the parties. The case of the petitioners comes under the provisions of the Transfer of Property Act instead of Indian Penal Code and the trial Court has not considered the ingredient of Section 420, 467, 468, 471 and 120-B IPC and the order of the trial Court taking cognizance is without any basis and same should be quashed. In the alternate, he has requested to this Court that if this Court is not inclined to quash the order of cognizance dated 27.1.2009, then the non-bailable warrant, which have bee issued by the trial Court, be converted into bailable warrant in the light of judgment delivered by the Apex Court in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. : AIR 2008 SC 251.

(E) Criminal Procedure Code (2 of 1974), Section 73- Constitution of India, Art. 21-Non-bailable warrant - Issuance-Deprived person of his liberty -Must be issued with due care - Circumstances in which non bailable warrant should be issued-Innumerated.

When non-bailable warrants should be issued.

52. 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.

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 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 along with the copy of the complaint. If the accused seems 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 courts 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.

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 strait-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.

56. 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.

6. For these reasons, I do not want to interfere in the order dated 27.1.2009, by which the trial Court has taken the cognizance for the offences as indicated above, but at the same time in the light of the judgment delivered by the Hon'ble Apex Court, as indicated above and looking to the facts and circumstances of the case, I dispose of this revision petition with the following directions:

(i) The non-bailable warrants issued by the trial Court are converted into summons. The trial Court is directed to summon the accused persons through serving of the summons along-with a copy of the complaint.

(ii) If the accused persons seem to be avoiding the summons, the trial Court in second circumstance should issue the bailable warrant; and

(iii) In third circumstance, when the court is fully satisfied that the accused persons are avoiding the court's proceedings intentionally, the process of issuing the non-bailable warrant should be resorted to.

(iv) Mr. Mahesh Gupta, who is appearing on behalf of the accused petitioners is directed to produced the petitioners before the trial Court on 15th April, 2009 and thereafter the trial Court will release the petitioners on bail as per his satisfaction.

(v) The trial Court is further directed to expedite the trial, as early as possible.

Since the main revision petition has been disposed of, therefore, the stay order dated 6.3.2009 passed by this Court is vacated and the stay application, filed therewith, also stands disposed of.