The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 1427 of 2023 An application under Section 482 of Code of Criminal Procedure, 1973. Pakki Srinibas Rao Pattnaik …. Petitioner -versus- State of Odisha …. Opp. Party Advocates appeared in this case through Hybrid Mode : For Petitioner
Legal Reasoning
: Mr.P.K.Panda, Advocate For Opp. Party : Mr. Debasish Biswal, ASC CORAM: JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment : 12.04.2023 ……………………………………………………………………….. Savitri Ratho, J. This application under Section 482 of Cr.P.C. has been filed by the petitioner to quash the orders dated 29.06.2022 and 04.07.2022 passed by the learned S.D.J.M., Berhampur in G.R. Case No.469 of 2022 corresponding to Baidyanathpur P.S. Case No.60 of 2022. 2. Mr. Panda, learned counsel for the petitioner submits that the order dated 29.06.2022 is liable to be set aside as it has been passed mechanically on the prayer of the I.O. and N.B.W. has been issued CRLMC No.1427 of 2023 Page 1 of 6 on the ground that there are sufficient materials against the petitioner for commission of offences punishable under Sections 341/294/323/506 of I.P.C. which is misconceived. 3. Referring to the decision of the Apex Court in the case of Inder Mohan Goswami & another vs. State of Uttaranchal & others reported in (2007) 12 SCC 1, learned counsel for the petitioner submits that N.B.W. could not have been mechanically issued when the offences alleged against the petitioner are triable by the learned Magistrate First Class. 4. Order dated 04.07.2022 reveals that after perusal of the case diary and other connected papers and being satisfied that a prima facie case exists for proceeding against the petitioner, cognizance of offences punishable under Sections 341/294/323/506 of I.P.C. has been taken. Perusal of the FIR reveals that the petitioner has been named in the FIR and the allegations in the FIR are sufficient for taking cognizance of the offences. So, I do not find any illegality in the order dated 04.07.2022 so far as it relates to taking of cognizance of the offences. 5. The Supreme Court in the case of Inder Mohan Goswami (supra) has held as follows: CRLMC No.1427 of 2023 Page 2 of 6 ……“47. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without the nature of controversy properly comprehending involved and without exhausting the available remedies issued non-bailable warrants. The trial court disregarded the settled legal position clearly enumerated in the following two cases. 48. In Omwati v.State of UP & Another (2004) 4 SCC 425, this court dealt with a rather unusual matter wherein the High Court firstly issued bailable warrants against the appellant and thereafter by issuing non- bailable warrants put the complainant of the case behind bars without going through the facts of the case. This Court observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days, but justification whatsoever. She suffered without any because facts of the case were not considered in proper perspective before passing the orders. The court also observed that some degree of care is supposed to be taken before issuing warrants. 49. In State of U.P. v. Poosu & Another (1976) 3 SCC 1 at para 13 page 5, the Court observed: “13…..Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non- bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judicially, it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as, the nature and seriousness of the offence, the character of the evidence, Page 3 of 6 CRLMC No.1427 of 2023 circumstances peculiar the accused, possibility of his absconding, larger interest of the public and the State”. to Personal liberty and the interest of the State Civilized countries have recognized that 50. liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with 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. liberty. Arrest personal 52. 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 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. When non-bailable warrants should be issued 53. Non-bailable warrants should be issued 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 CRLMC No.1427 of 2023 Page 4 of 6 it is considered that the person could harm custody if not placed into someone 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 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.”........ to 6. The only reason mentioned in the order dated 29.06.2022 for allowing the application of the I.O. and issuing NBW is as follows :- .....“Perusal the case record it is found that there are sufficient materials against the above noted accused person for commission of offence u/S-341/294/323/506 IPC.” .... 7. Other than observing that there are sufficient materials for proceeding against the accused, no other reason has been given for issuing NBW. It is apparent that the said order has been passed mechanically. There is no finding that the accused was avoiding the Court’s proceeding or could not be found or would harm someone if not taken into custody immediately. Considering the submissions of the counsel for the petitioners and the decision of the Supreme CRLMC No.1427 of 2023 Page 5 of 6 Court in the aforementioned case, the order dated 29.06.2022 issuing N.B.W. is not sustainable and is liable for interference. 8. The order dated 29.06.2022 issuing NBW and the portion of the order dated 04.07.2022 directing for execution of NBW passed by the learned SDJM Berhampur in G.R.Case No 469 of 2022 are accordingly set aside . 9. It is directed that if the petitioner surrenders before the learned S.D.J.M., Berhampur in the aforesaid case on or before 01.05.2023 and files an application for bail, the same shall be considered in accordance with law on the same day.
Decision
10. The CRLMC is accordingly disposed of. 11. Urgent certified copy of this order be granted on proper application. Judge …………………. (Savitri Ratho) Orissa High Court, Cuttack Dated 12th April, 2023/ Bichi CRLMC No.1427 of 2023 Page 6 of 6