Jangbahadur Singh v. The State Of Bihar

learned court below reflects that the first information was received before the learned court on 10.08.2007. On the next date i.e.

13.08.2007, on the application of the I.O. warrant of arrest was issued and thereafter on the very next date i.e., on 17.09.2007 proclamation was directed to be issued under Section 82 of the Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 Cr.P.C. It is submitted by learned counsel for the petitioner that the FIR was registered on 10.08.2007 and on 13.08.2007 the warrant of arrest was issued, which could not have been issued on mere asking, by filing of the requisition by the police. The conditions provided under Section 73(1) Cr.P.C. is a sine qua non for exercise of jurisdiction under Section 73 of the Cr.P.C. which reads as follows:- “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.” Hence, on bare reading of Section 73(1) Cr.P.C., it becomes clear that a warrant of arrest can be issued against a person only under three exigencies i.e.,:- (i) (ii) (iii) if the accused is an escaped convict; if he is a proclaimed offender: if he is an accused of a non-bailable offence and is evading arrest. Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 The Apex Court in the case of CBI Vs. Dawood Ibrahim Kaskar, reported in AIR 1997 SC 2494 has held that warrant of arrest under Section 73 of the Cr.P.C. is normally not to be issued by the Court solely for the production of accused before the police in the aid of investigation for the reason that the police even without warrant of arrest in a cognizable offence has a right to arrest a person under Section 41 of the Cr.P.C. The Court has power under Section 73 of the Cr.P.C. to issue warrant only for the purpose of securing appearance before the Court and not before the police and thus the power under Section 73 of the Cr.P.C. cannot be used solely for the purpose of production of accused before the police in the aid of investigation. Civilized countries have recognized that liberty is most precious of all the human rights. Similarly, Article 21 of the Constitution proclaim that no one shall be deprived of the liberty except in accordance with the procedure in the interest of society in maintaining law and order which has been explained by the Apex Court in the case of Inder Mohan Goswami Vs. State of Uttaranchal, reported in 2008(1) PLJR 82 (SC); paragraph nos. 50 and 51 of which read as follows:- “50. The issuance of non-bailable warrants involves interference with personal liberty. Arrest Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 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 the extremely important for the survival of a civilized society. Sometimes in the larger 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.” The Apex Court, in the case of Mohan Goswami (supra), has enumerated the situations under which a non-bailable warrant should be issued, in paragraph nos. 52, 53 and 55 as follows:- “52. Non-bailable warrants 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 Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013  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 ensure 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. 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 Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 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.” The present case, at best, comes within the 3rd category of person against whom the Magistrate can issue warrant under Section 73(1) of the Cr.P.C. which stipulates “any person who is accused of a non-bailable offence and is evading arrest.” The phrase cannot be read to mean that warrant can be issued against any person who is accused of a non-bailable warrant or against person who is evading arrest. The word „and‟ has been used between two phrases viz “any person, who is accused of a non-bailable offence and is evading arrest.” The word “and” has been used as a conjunctive which means that both these situations must appear simultaneously with regard to the person against whom warrant of arrest is to be issued. If both the eventuality is not available simultaneously or at the same time, the warrant cannot be issued. The word “and is evading arrest” would in fact qualify the escaped convict to be a proclaimed offender and Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 accused of non-bailable offence. If any accused of a non-bailable offence is not evading arrest then he can certainly be arrested by a police under Section 41 of the Cr.P.C. and warrant of arrest under Section 73 Cr.P.C. would not be required against him. Putting to test, the aforesaid principle laid down in the case of Nalini Kant Agrawal Vs. State of Bihar and others reported in 2003 (1) PLJR 350, it appears that the petitioner was an accused of non-cognizable offence registered under Sections 366A/34 of the I.P.C. but there is nothing on record to suggest that he was evading arrest. The counter affidavit filed on behalf of the State suggests that the requisition for issuance of warrant was submitted after 3 days of the institution of the case, since the petitioner was not located by the police in a serious offence. The impugned order dated 13.08.2007 reflects that the learned Court has only mentioned that an application has been filed for issuance of warrant of arrest and consequently non-bailable warrant of arrest was issued but it does not stipulate that the petitioner is evading arrest. The mechanical approach gets reflects from the fact that on very next date on 17.09.2007, the learned Court below directed to issue proclamation under Section 82 Cr.P.C. which suggests that in a mechanical and casual manner the learned Court below has Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 exercised the jurisdiction under Section 73 of the Cr.P.C. In view of the above discussion, to secure the ends of justice, the order dated 13.08.2007 passed in Desari P.S. Case No. 118 of 2007 by learned C.J.M., Vaishali at Hajipur is set aside. This Court is not interfering with the order dated 17.09.2007 by which proclamation under Section 82 of the Cr.P.C. was directed to be issued since no prayer has been made with that regard and moreover, with the quashing of the order of issuance of warrant of arrest, the order dated 17.09.2007, by which proclamation under Section 82 Cr.P.C. has been issued, automatically looses its relevance in view of the fact that an application/prayer under Section 82 Cr.P.C. can be allowed by the Court only after recording satisfaction that the warrant issued by it cannot be executed and if the order for issuance of warrant under Section 73 Cr.P.C. itself is illegal then Section 82 Cr.P.C. would not come into play. From the material on records and the counter affidavit of the State, it appears that the petitioner challenged the prosecution case in Cr.W.J.C. No. 899 of 2007 in which the proceeding before learned Court below was stayed till 10.01.2011 and subsequently the criminal writ application was dismissed as withdrawn vide order dated 10.01.2011 and now final form Patna High Court Cr.Misc. No.28721 of 2011 (4) dt.21-11-2013 (charge sheet) has been submitted. Hence, the learned court below will be at the liberty to pass fresh order in accordance with law if the petitioner evades to appear on two consecutive occasions. Accordingly, this application is allowed with the observations made above. DKS/ (Dinesh Kumar Singh, J)