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AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 1922, 1924 and 1925 of 2023 (Applications under Section 482 of Cr.P.C.) CRLMC No.1922 of 2023 Bimal Kumar Agarwalla …. Petitioner -versus- 1.State of Odisha 2.Kailash Industries through its Proprietor Roshan Lal Bansal …. Opp. Parties CRLMC No.1924 of 2023 Ritesh Kumar Agarwalla …. Petitioner -versus- 1.State of Odisha 2.Kailash Industries through its Proprietor Roshan Lal Bansal …. Opp. Parties CRLMC No.1925 of 2023 Ratan Kumar Agarwalla …. Petitioner -versus- 1.State of Odisha 2.Kailash Industries through its Proprietor Roshan Lal Bansal …. Opp. Parties CRLMC No.1922 of 2023 Page 1 of 20 //2// Advocates appeared in this case through Hybrid Mode : For Petitioners : Mr.R.K.Sarangi, Advocate For Opp. Parties : Ms. S.Patnaik, Addl. Government Advocate (for opposite party No.1) CORAM: JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment : 03.05.2023 ……………………………………………………………………….. Savitri Ratho, J. These applications under Section 482 of Cr.P.C. have been filed by the petitioners challenging the order dated 01.11.2022 passed by the learned Sub Divisional Judicial Magistrate (in short “SDJM”), Panposh in ICC Case No.149 of 2021 issuing non bailable warrant of arrest (in short “NBW”) against them. As the same order has been challenged by the petitioners and the averments
Decision
in all the three petitions are almost identical, they are disposed of by a common judgment. 2. That the petitioners are accused in 1CC case No. 149 of 2021 alongwith the Company Kanika Furnitiure Pvt Ltd., where cognizance of offences under Section-138 of the Negotiable Instruments Act has been taken against them on the basis of a CRLMC No.1922 of 2023 Page 2 of 20 //3// complaint by the Opposite Party No.2, by order dated 07.12.2021 passed by the learned SDJM. 3. Copy of the order sheet (containing the orders passed between 09.08.2021 and 04.04.2023) in the complaint case has been annexed as Annexure-7 in each of CRLMCs. Perusal of the order dated 07.12.2021 reveals that cognizance of offence under Section 138 of the N.I. Act has been taken and fresh summon directed to be issued to the accused person. (“Fresh” summons seems to be an error as it was the first time summon was being issued”). On 07.01.2022, S.R. was tagged with the case and case was fixed to 05.03.2022 for appearance. The order dated 05.03.2022 reveals that on that day the complainant filed postal receipt, tracking report and affidavit, postal A.D. returned after service, S.R. returned with an endorsement the address left and tagged with the case record. The case was posted to 07.03.2022 for appearance. On 07.03.2022, the Magistrate inter alia held that as the postal A.D. returned after service and S.R. has returned and tagged with the case record, hence service of summon is sufficient and issued bailable warrant against the accused and fixed to 07.05.2022 for production. On 07.05.2022, bailable warrant of arrest was not executed, so reminder was issued to the concerned CRLMC No.1922 of 2023 Page 3 of 20 //4// Police Station. Case was directed to be put up on 01.11.2022 for production. On 01.11.2022 as bailable warrant had not been executed, N.B.W. was issued against the accused and case was posted to 06.01.2023 for production. Case record was put up on 07.01.2023 as 06.01.2023 was fixed as holiday, N.B.W./A was not yet executed. So, the learned Magistrate has directed for issuing reminder and posted the case to 19.07.2023 for production. 4. Mr. R.K.Sarangi, learned counsel for the petitioners submits that as the petitioners had moved to Bhubaneswar, SR had returned unserved and as the complainant had no reason to file the complaint, they became aware of this case only after the police started looking for them to execute the NBWs and after receipt of certified copy of the order sheet on 11.04.2023 (typed as 11.04.2022 in the petitions), they have approached this Court. He further submits that in view of the nature of allegations and offence alleged, the learned Magistrate should not have issued NBW arrest without calling for a report from the police for non execution of the bailable warrants and without recording his/her satisfaction that the petitioners were avoiding to appear before the Court. He also submits that the issue of NBW has disastrous consequences and should normally not be resorted to CRLMC No.1922 of 2023 Page 4 of 20 //5// without adequate cause and the complainant has suppressed relevant facts for which the petitioners are eager to appear in the Court through counsel and contest the trial. He relies on the decision of the Supreme Court in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra & another : (2012) 9 SCC 791 , in support of his submissions for quashing of NBW. 5. Ms. S.Patnaik, learned Addl. Government Advocate submits that as bailable warrants could not be executed, in order to secure the presence of the petitioners, the learned Magistrate was compelled to issue the NBW. 6. The matters of issue of bailable or non bailable warrant and representation of the accused is between the accused and the Court and the complainant need not be heard . With a view to avoid delay in disposal of the petitions I do not consider it necessary to issue notice to the complainant. (See Raghunath Das vs Hari Mohan Pani : (1988) 1 OCR 136). 7. In the case of State of U.P. Vs. Poosu & Another reported in (1976) 3 SCC 1, a (5 Judge) Constitution Bench of the Supreme Court had been called upon to answer the following question : CRLMC No.1922 of 2023 Page 5 of 20 //6// “ Whether the Supreme Court while granting Special Leave to appeal under Article 136 of the Constitution, against an order of acquittal on a capital charge, has the power to issue a non bailable warrant for the arrest and committal to prison of the accused -respondent who had been acquitted by the High Court ? The following paragraph of the decision is relevant and is extracted below: “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 computerise 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, circumstances peculiar to the accused, possibility of his absconding, tampering with evidence, larger interest of the public and State”(see State vs Capt. Jagjit Singh : AIR 1962 SC 253) In the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1, a three judge bench of the Supreme Court referring to the decision in Poosu CRLMC No.1922 of 2023 Page 6 of 20 //7// (supra) has cautioned that while issuing non-bailable warrants, the Courts should exercise their discretion cautiously. The relevant paragraphs are extracted below : …“51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest 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. 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 warrant should be issued to bring a person to court when summons or 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.1922 of 2023 Page 7 of 20 //8// it is considered that the person could harm someone 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 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. 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 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-bailable warrants." In the case of Raghuvansh Dewanchand (supra), in a case under Section 324 I.P.C, a non bailable warrant of arrest (in short CRLMC No.1922 of 2023 Page 8 of 20 //9// “NBW”) had been issued against the accused for his non appearance on one day in the Court. He appeared in the Court a few days later for which the warrant was cancelled. The next day which was 15th August and a holiday, the complainant went to the concerned Police Station and insisted on execution of the NBW. A constable accompanied the complainant for execution of the warrant. When he wanted to arrest the accused, the latter informed him that the warrant had been cancelled, but as he could not produce any documentary evidence, he was arrested in a public place causing him serious humiliation. He was produced before the Magistrate that afternoon and he was directed to be released on bail. The accused approached the High Court alleging malafides and humiliation at the hands of the constable in collusion with the complainant praying inter alia for suitable disciplinary action against the constable, and payment of compensation and costs. The High Court directed as follows : "We therefore, find that there was no justification for issuance of non-bailable warrant on 7-8-2002 merely because the petitioner had remained absent in Criminal Case No. 163/P/2000 (sic) by the Metropolitan Magistrate. The Magistrate could have issued either a notice or a bailable CRLMC No.1922 of 2023 Page 9 of 20 //10// warrant depending upon the facts revealed from the records. Once the warrant was cancelled on 12-08-2002, it was necessary for the court to immediately communicate the same to the concerned Police authority so that no inconvenience could have been caused to the person against whom the warrant was initially issued. Once the warrant was sought to be executed on holiday and the concerned police officer was categorically informed that the warrant had already been cancelled and the police officer being fully aware of the circumstances and nature of the case in which warrant had been issued, it was necessary for the police officer to ascertain and to find out whether the warrant which was sought to be executed was still enforceable or had already been cancelled and not to rush to execute the warrant in those circumstances and that too on a holiday. Having produced the necessary documents confirming the cancellation of the warrant much prior to the date on which it was sought to be (sic) enforced, it was the duty of the police officer to tender the necessary apology to the petitioner for executing such warrant on the holiday, and the concerned officer having failed to tender the apology it apparently shows that he had not performed his duty in the manner he was required to perform as a responsible police officer. Even the affidavit filed by the Respondent No.2 nowhere discloses any repentance for having executed the warrant which was already cancelled. It is a clear case of unnecessary interference with the liberty of a citizen." CRLMC No.1922 of 2023 Page 10 of 20 //11// As the High Court awarded cost of Rs. 2,000/- but did not direct for suspension of the constable nor direct him to be tried before a competent criminal court, the accused approached the Supreme Court. Relying on the decision Poosu (supra), the Supreme Court held as follows : …“10. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non- bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be CRLMC No.1922 of 2023 Page 11 of 20 //12// flouted by the insolence of office. There are dangers in any choice." 11. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.).”… After referring to paragraphs 53, 54 and 55 of the decision in Inder Mohan Goswami (supra), it held as follows : …..“13. We deferentially concur with these directions, and emphasize that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22(1) of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad CRLMC No.1922 of 2023 Page 12 of 20 //13// guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. Viewed in this perspective, we regret to note that in the present case, having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings, it was not a fit case where non-bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion, the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are, therefore, in complete agreement with the High Court that in the facts and circumstances of the case, issuance of non-bailable warrant was manifestly unjustified”….. The Supreme Court did not think it fit to award any further monetary compensation to the accused. It also observed that the accused being a practicing Advocate conversant with court procedure should have procured copy of the memo/order dated 12.08.2002.While deploring the conduct of the constable it also CRLMC No.1922 of 2023 Page 13 of 20 //14// observed that his act of detaining the accused may have been motivated but could not be said to be per se without the authority of law . With a view “ to check or obviate the possibility of misuse of an arrest warrant , in addition to the statutory and constitutional requirements to which reference” had been made it laid down the following guidelines to be adopted in all cases where non - bailable warrants are issued by the Courts: “28.1. All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for; 28.2. Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant; 28.3. The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; 28.4. The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to CRLMC No.1922 of 2023 Page 14 of 20 //15// be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; 28.5 Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; 28.6. No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case; 28.7. A register similar to the one in para 28.5 supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution; 28.8. Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; 28.9 On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned CRLMC No.1922 of 2023 Page 15 of 20 //16// Police Station or the Officer In-charge of the concerned agency; 28.10. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse; 28.11. In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and 28.12. In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.”… In the case of Vikas vs State of Rajasthan reported in (2014) 3 SCC 321, the order issuing NBW against the petitioners while allowing an application under Section – 319 of the Cr.P.C. was under challenge. While quashing the non- bailable warrants, the Supreme Court referred to its earlier decisions in the cases of Poosu (supra), Inder Mohan Goswami (supra) and CRLMC No.1922 of 2023 Page 16 of 20 //17// Raghuvansh (supra) . The relevent portions of the judgment are extracted below : ….“13. The Constitution of India is the grund norm- the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution. Therefore, criminal Law also derives its source and sustenance from the Constitution. The Constitution, on one hand, guarantees the right to life and liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. 14. The issuance of non- bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in the case of Inder Mohan Goswami : (2007) 12 SCC 1 ; and in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Anr : (2012)9 SCC 791 , wherein it has been observed ( Inder Mohan Goswami case para 50-51 ) “Personal liberty and the interest of the State 50. Civilized countries… 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 CRLMC No.1922 of 2023 Page 17 of 20 //18// 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 warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, [this demands that] the courts have to be extremely careful before issuing non- bailable warrants.”… 16. To appreciate the present case, it is pertinent to discuss the meaning of ‘bailable offences’ and ‘non-bailable offences’ and the circumstances in which a non-bailable warrant can be issued 17. In the legislative history for the purposes of bail, the term ‘bailable’ and ‘non-bailable’ are mostly used to formally distinguish one of the two classes of cases, viz. 'bailable' offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non- bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition CRLMC No.1922 of 2023 Page 18 of 20 //19// methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint cases under an application of Section – 319CrPC.the power under Section 319CrPC 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 formula for issuance of warrants but as a general rule, unless an accused 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 conditions for the issuance of non- bailable warrant are reiterated in Inder Mohan Goswami and in the State of UP vs Poosu ……” 8. From a reading of these decisions, it is crystal clear that in view of its disastrous consequences on the personal liberty of an individual, NBW should not be issued mechanically. As the courts derive their “source and sustenance “from the Constitution, which, guarantees the right to life and personal liberty to its citizens under Article 21 and also imposes a duty on the Courts to protect the liberty of the citizens, the Court should be extremely cautious while issuing NBW and should do so only after considering the totality of the facts and circumstances and only after the “Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally”. CRLMC No.1922 of 2023 Page 19 of 20 //20// 9. The impugned order does not reveal that the learned S.D.J.M. had received or called for any report from the police regarding non-execution of the bailable warrant . Nor does the order reveal that the learned S.D.J.M. was satisfied that the accused was avoiding the Court’s proceedings intentionally. The impugned order issuing NBW is therefore liable for interference . 10. I therefore consider this to be a fit case for exercise of power under Section - 482 of Cr.P.C to set aside the impugned order dated 01.11.2022 passed by the learned S.D.J.M., Panposh in ICC Case No.149 of 2021 and quash the non- bailable warrants issued against the petitioners. The impugned order is accordingly set aside and the non bailable warrants issued against the petitioners are quashed . 11. As the case had been fixed to 19.07.2023 by the learned S.D.J.M. for production, it is directed that the petitioners shall appear before the learned S.D.J.M., Panposh on or before 26.05.2023 to enable the learned S.D.J.M. to proceed with the case. 12. The CRLMCs are allowed. Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Personal Assistant Reason: Authentication Location: OHC Date: 15-May-2023 21:13:05 Judge …………………. (Savitri Ratho) Orissa High Court, Cuttack Dated 03.05.2023/Bichi CRLMC No.1922 of 2023 Page 20 of 20