Ashish Kumar & Anr. v. State of Punjab

Present:- Mr. Sanjiv Bansal, Advocate for the petitioners. Mr. Rupinder Khosla, Addl. A.G. Punjab. **** DAYA CHAUDHARY, J. Crl. Misc. No. 35782 of 2010 Application is allowed as prayed for. Crl. Misc. No. 35781 of 2010 This is an application for permission to amend the petition filed under Section 482 Cr.P.C. seeking quashing of order dated 4.6.2010 passed by the learned trial Court in case FIR No. 44 dated 10.3.1994 under Sections 406/420/467 read with Section 120-B IPC at Police Station Kotwali, Ludhiana Learned counsel for the petitioners contends that he may be permitted to amend the petition and may be permitted to implead Amar Kaur as petitioner No.2 as she is also aggrieved by the impugned order. Learned counsel for the respondent-State has no objection in allowing the prayer of the petitioners. Prayer is allowed. Amended petition filed by petitioners is taken on record and Amar Kaur is impleaded as petitioner No.2 in the main petition. Crl. Misc. No. M-19164 of 2010 (O&M) (2) Crl. Misc. No. 34851 of 2010 and Crl. Misc. No. M-19164 of 2010 Learned counsel for the petitioners at the very outset fairly contends that he does not want to press the allegations levelled against Mr. S.S. Saini for the purpose of present petition. He also prays that he does not want to press his prayer regarding transfer of trial in the aforesaid FIR outside the State of Punjab at this stage as he wants to file fresh petition for that purpose. Prayer is allowed. Learned counsel for the petitioners challenges order dated

4.6.2010, whereby, non-bailable warrants have been issued against the petitioners. He contends that an application for exemption from personal appearance was sent on 4.6.2010 by petitioner No.1 through registered post, which has also been acknowledged by the trial Court but the same was declined without mentioning any reasons thereof. Learned counsel further submits that the intention of the petitioners from the very beginning was never to evade the service and at present also they are ready to surrender before the trial Court and only because of the trial pending at CBI Court at Delhi, which is going on day-to-day basis, the said application for exemption from personal appearance was moved. Learned counsel further contends that the trial Court has issued non-bailable warrants straightway without following the provisions of law and without recording any finding that there was reasonable belief that the accused will not voluntarily appear in the Court or the police authorities are unable to find the person to serve him without a summon or the accused can harm someone if not placed into custody immediately, as has been held by Hon'ble the Apex Court in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others (2007) 12 SCC 1. Moreover, learned counsel for the petitioners has specifically stated that the said application was for Crl. Misc. No. M-19164 of 2010 (O&M) (3) exemption from personal appearance for that date only and not for any date in future. The only limited prayer of the petitioners in the present petition is that the trial Court has not considered the application for exemption from personal appearance, which was sent through registered post. The reason for non-appearance of the petitioners was that they had to attend day-to- day proceedings before CBI Court at Delhi and since from the very beginning the petitioners have not made even an attempt to remain absent or to avoid the appearance before the Court. Non-bailable warrants have been issued without following the proper procedure under the law. Although many allegations have been levelled in the petition but learned counsel for the petitioners has not pressed the same and has limited his prayer with regard to passing of impugned order dated 4.6.2010 of issuing non-bailable warrants against the petitioners. Mr. Rupinder Khosla, Addl. A.G. Punjab also submits that in case learned counsel for the petitioners does not press the allegations against Mr. S.S. Saini, he has no objection in setting aside order dated

4.6.2010, as the petitioners are aggrieved only by that order. It appears from the documents available on the record that the petitiones were served for the first time for appearance on 4.6.2010 and before that the petitioners were never served any summons. Immediately after that petitioner No.1 sent an application for exemption from personal appearance mentioning his difficulty that he had to appear before the Court at Delhi on 3.6.2010 but the trial Court ignoring all the facts mentioned in the application had issued non-bailable warrants. Nothing has come in the order which shows that the petitioners were served but they have not appeared before the trial Court or there were such circumstances to the satisfaction of the trial Court that the petitioners could not be served except by issuance of non-bailable warrants. In the present case FIR is of Crl. Misc. No. M-19164 of 2010 (O&M) (4) the year 1994 and the final report has been filed in the year 2007 and the petitioners were served for the first time on 22.5.2010 for appearance on

4.6.2010. Petitioners had already been granted anticipatory bail by this Court and petitioner No.1 had moved an application for exemption from personal appearance only on one date i.e. 4.6.2010 and reason for exemption from personal appearance was specifically mentioned, which was genuine as they were to appear before the Court at Delhi on 3.6.2010. Moreover, it has also not been mentioned in the order whether any bailable warrants were issued to the petitioners earlier or not or they were not served through ordinary service or other means. Straightway issue of non- bailable warrants is not required under the law and proper procedure has not been adopted. As issue of non-bailable warrants involves interference with the personal liberty as the arrest and imprisonment is deprivation of the most precious right of an individual and Courts have to be extremely careful while issuing non-bailable warrants. Non-bailable warrants should be issued to bring a person to the Court when summons or bailable warrants have not brought the desired result or there is a reasonable belief that the person is not appearing voluntarily or the police authorities are not able to serve that person without summon or that person would harm someone if not placed into custody immediately. In the present case none of the circumstances are there and the trial Court has passed the impugned order without recording such like finding which is not warranted under law. Accordingly, impugned order dated 4.6.2010 is set aside and the petitioners are directed to surrender before the trial Court and furnish their bail bonds and surety bonds to the satisfaction of trial Court. July 16, 2010 (DAYA CHAUDHARY) JUDGE Crl. Misc. No. M-19164 of 2010 (O&M) (5) Note:-Whether this case is to be referred to the Reporter .......Yes/No