O Late Kuldeep Nayan, Resident of Professors v. Quarter, Science College Campus, Patna University, Distt
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 37103 of 2012 ====================================================== 1. Dr. Deepak Kumar Sharma, S/O Late Chandra Kumar Sharma, Resident of A/23, Professor Colony, Near Lal Babu Market, North Shashtrinagar, P.S.- Shastrinagar, Distt.- Patna 2. Dr. Randhir Kumar Singh, S/O Sri Anant Prasad Singh, Associate Professor, Deptt. of Sociology, Patna College, Patna, P. S.- Pirbahore, Distt.- Patna .... .... Petitioner/s 1. The State of Bihar 2. Dr. Dharm Prakash, S/O Late Kuldeep Nayan, Resident of Professors Versus Quarter, Science College Campus, Patna University, Distt.- Patna .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Sri B. P. Pandey, Sr. Advocate Mr. Harendra Kumar Tiwary, Advocate For the Opposite Party/s : Mr. Parmeshwar Mehta, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 29-07-2013 Heard. This is a petition for quashing the order dated 09.11.2011 passed by the learned Sessions Judge, Patna in Cr. Rev. No. 511 of 2011 by which the revision petition preferred by the petitioners has been
Legal Reasoning
rejected confirming the order of learned Judicial Magistrate-1st Class, Patna dated 08.06.2011 by issuing bailabile warrant of arrest against the petitioners.
Legal Reasoning
Learned counsel for the petitioners submits that the cognizance has been taken on 07.10.2010 with a direction to issue summon against the accused persons. In pursuance of the order the summon was issued on 02.06.2011 as apparent from Annexure-6 which is the receipt of sending summon by speed post. But without any service report regarding service of summon a bailable warrant of arrest has been issued on 08.06.2011. It is contended that the bailable warrant of arrest has been issued without being Patna High Court Cr.Misc. No.37103 of 2012 (3) dt.29-07-2013 2 satisfied that the petitioners were avoiding summon or without recording any reason for issuing warrant. Hence, it is submitted that the order was passed without due application of mind. From perusal of the records, it is apparent that the cognizance has been taken by order dated 07.10.2010 with a direction to file requisites for issuing summons against the accused persons within ten days. The requisites for the summons were filed on 02.12.2010. It was ordered that the summon be issued fixing 15.12.2010. However, there is nothing on the record or order-sheet or endorsement in the margin of the certified copy of the order filed that the summon was ever sent or a service report was received. The court below by impugned order dated 08.06.2011 without having been satisfied that the summon has been served or the petitioners are avoiding the summon or without recording any reason ordered to issue non-bailbale warrant of arrest. The said order was challenged in a revision before the learned Sessions Judge. However, the Sessions Judge by order dated 09.11.2011 rejected the revision petition on the ground that he do not find any illegality or impropriety in the order and rejected the revision petition on the ground that one of the co-accused, namely, Professor Shambhu Nath Guha after issuing of summon has appeared with a petition under Section 205 Cr.P.C. and hence, the petitioners had full knowledge about the case but deliberately avoided to appear in the court below. Learned counsel for the petitioners has challenged the order on the ground that merely because co-accused appeared in the case cannot be a ground to infer that the petitioners had notice or knowledge of the case and has placed reliance on para 55 of the case of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. reported in (2007)12 SCC 1 equivalent Patna High Court Cr.Misc. No.37103 of 2012 (3) dt.29-07-2013 3 to AIR 2008 SC 251. However, the point in issue is not required to go into the merit of the fact alleged in the complaint. But the question is whether the order impugned by which the bailable warrant of arrest ordered to be issued against the petitioners without being satisfied by the Magistrate that summon ordered to have been issued against the petitioners have been served or without any service report or without giving any reason is sustainable in law. However, to answer the issue, it is pertinent to go into Section 87 of the of the Code of Criminal Procedure which is quoted hereunder:- 87. “Issue of warrant in lieu of, or in addition to, summons. – A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest - (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure”. Hence, it is apparent that as per Section 87(b) of the Cr.P.C., a Court empowered to issue summon can issue warrant of arrest after issuing summon for reason to be recorded that summon issued has been proved to have been duly served in time and the accused failed to appear without reasonable excuse within time fixed. As per Section 87(a) Cr.P.C. warrant can be issued for exigency if summon issued but before the date fixed for appearance, the court has reason to believe that the accused against whom summon issued has absconded or will not obey the summon. Patna High Court Cr.Misc. No.37103 of 2012 (3) dt.29-07-2013 4 However, from the impugned order dated 08.06.2011 issuing bailable warrant of arrest there is nothing to indicate that the petitioner on whom warrant of arrest issued did not appear on the date fixed even after service of summon in time without any excuse or it has reason to believe to have absconded or will not obey the summon. The mere fact that one of the co-accused appear in case is no ground to believe that the petitioners were served with summon and had knowledge of the case, hence, the order of the Sessions Judge is devoid of any merit or legal requirement. The order dated 08.06.2011 only mentions to issue bailable warrant without giving any reason as per the provision of Section 87 Cr.P.C. to the prejudice of the petitioners. However, under the facts and circumstances the order impugned by which the bailibale warrant of arrest has been issued does not mention any reason nor a satisfaction that the summon has been served. Hence, it is apparent that the order impugned has been passed without due application of mind whereas the discretion given is required to be exercised judicially with care and caution. However, it is relevant to quote para 55 of the decision reported in the case of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. reported in (2007)12 SCC 1 in which the Apex Court has held that “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-bailbale warrants. Patna High Court Cr.Misc. No.37103 of 2012 (3) dt.29-07-2013 5 Hence, taking into consideration the entire facts and circumstances, it is apparent that the order was passed without due application of mind, without any care and caution and hence, the order impugned is hereby set aside, with a direction to the petitioners to appear in the court below within four weeks from today. Let this order be communicated to the court concerned through FAX at the cost of the petitioners. (Gopal Prasad, J) Kundan/-