The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P.No. 1729 of 2017 Ashok Kumar Sharma @ Ashok Sharma …. .…Petitioner 1. The State of Jharkhand 2. Sangita Kumari Versus -------- …. .…Opp. Parties CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND For the Petitioner For the State For the Informant : Mr. A.K.Sahani, Advocate : Mrs. Nehala Sharmin, Spl. P.P. : Mr. Abhijeet Kumar Singh, Advocate -------- Order No. 07/ dated 09.07.2024 Heard the learned Counsel of parties and perused the record. 2. This petition has been directed to quash the order dated 19.05.2017 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur in Cr. Revision No. 85 of 2017 whereby
Legal Reasoning
dismissing the revision affirmed the order dated 07.01.2017 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in connection with G.R. Case No. 2073 of 2010, arising out of Telco P.S. Case No. 274 of 2010 whereby a non-bailable warrant for the arrest of the petitioner has been issued without issuance of summons and execution of bailable warrant. 3. From the perusal of the record, it is found that Telco P.S. Case No. 274 of 2010 was registered against the accused Ashok Kumar Sharma petitioner herein for the offence under Section 498 A and (cid:190) of Dowry Prohibition Act. 4. After submission of the charge-sheet before the Court of Magistrate concerned, the cognizance was taken and the date was fixed for appearance of the accused-petitioner herein. 5. On behalf of the petitioner the copy of the order-sheet of G.R.Case No. 2073 of 2010 is annexed from 19.07.2013 to 17.06.2017. 6. From the very perusal of this order-sheet, it is found that on 19.07.2013 the accused was absent and date was fixed for appearance. Thereafter on 26.07.2013, 02.08.2013, 01.10.2013 and 11.02.2014 were fixed for appearance but in all these order-sheet, the learned trial court has not issued any summon against the accused. The simple date for appearance was fixed but there is no order in regard to issuing process against the accused for his appearance. On 15.05.2014 the learned trial court straightway issued the bailable warrant against the accused petitioner herein. 7. From the very perusal of the order dated 15.05.2014, it is found that the learned trial court has nowhere mentioned in regard to the service report of issuance of summon whether the summon was issued or not or what service report has been received thereon. The straightway bailable warrant has been issued against him. Thereafter on 17.05.2014 date was also fixed by which the order passed by the Hon’ble High Court in W.P.(Cr.) No. 337 of 2011 was taken on record. Then on 30.06.2014 the accused remained absent and Office was directed to comply the previous order i.e. order dated 15.05.2014. Thereafter several dates were fixed as 24.09.2014/25.09.2014 then 10.12.2014, 26.02.2015, 20.04.2015, 04.06.2015, 2 22.07.2015 on each date the Office was directed to comply with the order dated 15.05.2014. On 08.10.2015 non-bailable warrant was issued by the trial court to ensure the appearance of the accused but in these order-sheet nothing is mentioned in regard to the execution of the bailable warrant against the accused which were directed to be issued against the accused by the Office. Thereafter again on 10.12.2015, 15.02.2016, 05.04.2016, 21.06.2016, 16.08.2016 on each date Office was directed to comply the previous order but no date of the previous order was mentioned whether it was the previous order issuance of bailable warrant dated 15.05.2014 or the order of issuance of non-bailable warrant 08.10.2015 nothing is mentioned in these orders by the trial court. Thereafter on each date same order was passed and ultimately on 07.01.2017 the trial court issued non-bailable warrant against the accused 8. By way of this Cr. Misc. Petition the petitioner has sought to quash the order dated 07.01.2017 which was passed by the learned trial court and same was affirmed by the Revisional Court vide order 19.05.2017 dismissing the Cr. Revision. 9. From the perusal of record, it is found that the learned trial court while ensuring the appearance of the accused in that case has never issued the summon only the date was fixed for the appearance and thereafter without service report in regard to any process issued against the accused straightway the bailable warrant were issued against the 3 petitioner-accused on 15.05.2014. Further there is nothing on record in regard to the execution of the bailable warrant against the accused and the learned trial court straightway issued the non-bailable warrant against the accused on 08.10.2015 and thereafter 07.01.2017. 10. It is the settled law that while issuing process against the accused in any case, it is obligatory upon the court concerned first to issue the summon. Thereafter despite issuance of summon the accused does not appear then bailable warrant is to be issued and even after execution of the bailable warrant the accused does not appear the non-bailable warrant is to be issued. 11. From the very perusal of order-sheet of G.R. Case No. 2073 of 2010, it is found that the learned trial court has not followed this procedure and the order passed by the learned trial court has been affirmed by the Revisional Court. 12. The Hon’ble Apex Court has held in Raghuvansh Dewanchand Bhasin vs. State of Maharastra (2012) 9 SCC 791 at para 12 as under: “12. In Inder Mohan Goswami v. State of Uttaranchal, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed (SCC pp. 17-18, paras 53-55) 53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This court be when: • it is reasonable to believe that the person will not voluntarily appear in court; or 4 • the police authorities are unable to find the person to have him with a summon; or • it is considered that the person could harm someone to the extremely if not placed into custody immediately. 54. 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 serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or F.I.R. has not been filed with an oblique motive. 55. 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 the court’s proceeding that intentionally, the process of issuance of the non-bailable warrant should be restored to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.” the accused is avoiding 13. In view of the above, the impugned order passed by the learned Revisional Court dated 19.05.2017 by which the order passed by the learned trial court has been affirmed. Both need interference. 14. Accordingly, this petition is hereby allowed. The impugned order dated 19.05.2017 & 07.01.2017 are hereby quashed. 15. The petitioner is directed to ensure his appearance before the learned trial court within two weeks after production of the order before the trial court. 5 16. The copy of this order also be communicated to the court concerned. P.K.S/A.F.R. (Subhash Chand, J.) 6