Leeladhar & Ors. v. State of Rajasthan and Anr.

(Rajasthan)(Jaipur Bench)

2010(1) RLW 604

RAJASTHAN HIGH COURT

(Jaipur Bench)

Before :- Mahesh Chandra Sharma, J.

S.B. Criminal Revision Petition No. 194 of 2009. D/d. 30.03.2009.

Leeladhar & Ors. - Petitioners

Versus
State of Rajasthan and Anr. - Respondents

For the Petitioners :- Mahesh Gupta, Advocate.

For the State :- Piyush Kumar, P.P.

For the Respondent No. 2 :- Inderjeet Singh, Advocate.

Indian Penal Code, Sections 420, 467, 468, 471 and 120-B - Offences under - Revision
against the order of taking cognizance and issuance of non-bailable warrant - After
investigation Police submitted Final Report - Filed protest petition - Recorded statement
under Section 200 and 202 Criminal Procedure Code and took cognizance - Civil litigation is
pending between the parties and the case comes under the provisions of Transfer of
Property Act instead of Indian Penal Code - Unless an accused is charged with a heinous
crime and it is feared that he 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 - Non-bailable
warrant converted into summons.

[Paras 5 and 6]

Cases Referred :

Inder Mohan Goswami & Another vs. State of Uttaranchal & Others, AIR 2008 SC 251.

JUDGMENT

Sharma, J. - Heard learned counsel for the parties.

2. This revision petition has been filed against the order dated 27th January, 2009 passed by the Civil
Judge (Jr. Div.) & Judicial Magistrate, 1st Class, Mangrol, District Baran, in Criminal Case No. 34/2009,
arising out of FIR No. 137/2008 and Final Report No. 48/2008, whereby the learned Magistrate took
cognizance against the accused-petitioners for the offence under Section 420, 467, 468, 471, 120-B
Indian Penal Code and issued non-bailable warrant.

3. In short, the brief facts of the case are that the complainant- respondent No.2 (Mohammad
Siddiqui) submitted a complaint before the trial Court against the petitioners for the offence under
Section 420, 467, 468, 471, 120-B Indian Penal Code. The trial Court sent the complaint, under
Section 156(3) of the Criminal Procedure Code to the Police Station, Mangrol, District Baran for
registering the First Information Report and for investigation. The Police Station, Mangrol registered
the F.I.R. No.137/2008 for the offence under Sections 420, 467, 468, 471, 120-B Indian Penal Code.
After investigation, the police submitted the final report.

4. The complainant-respondent No. 2 filed the protest petition. Thereafter the statement under
Section 200 and Criminal Procedure Code were recorded. Upon that, the trial Court took cognizance
against the petitioners for the offence under Sections 420, 467, 468, 471 and 120-B Indian Penal
Code vide his order dated 27.1.2009. Against the said order, this revision petition has been preferred.

5. The learned counsel for the petitioners Mr. Mahesh Gupta submits that no prima facie case is made
out against the petitioners and the trial Court has committed a serious error while not considering the
evidence collected by the investigation authorities, who submitted a final report. In the present
matter, civil litigation is pending between the parties. The case of the petitioners comes under the
provisions of the Transfer of Property Act instead of Indian Penal Code and the trial Court has not
considered the ingredient of Section 420, 467, 468, 471 and 120-B Indian Penal Code and the order of
the trial Court taking cognizance is without any basis and same should be quashed. In the alternate,
he has requested to this Court that if this Court is not inclined to quash the order of cognizance dated
27.1.2009, then the non-bailable warrant, which have been issued by the trial Court, be converted
into bailable warrant in the light of judgment delivered by the Apex Court in the case of Inder Mohan
Goswami & Another vs. State of Uttaranchal & Others, AIR 2008 SC 251.
 "(E) Criminal Procedure Code, 1973, Section 73 - Constitution of India, Article 21 -
Non-bailable warrant - Issuance-Deprived person of his liberty - Must be issued with
due care - Circumstances in which non bailable warrant should be issued -
Innumerated. When non-bailable warrants should be issued.
52. 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 it
is considered that the person could harm someone if not placed into custody
immediately.
53. 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.
54. 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 seems 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 courts
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.
55. The power 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 strait-jacket formula for
issuance of warrants but as a general rule, unless an accused is charged with the
commission of an offence of a heinous crime and it is feared that he 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.
56. The Court should try to maintain proper balance between individual liberty and the
interest of the public and the State while issuing non-bailable warrant."

6. For these reasons, I do not want to interfere in the order dated 27.1.2009, by which the trial Court
has taken the cognizance for the offences as indicated above, but at the same time in the light of the
judgment delivered by the Hon'ble Apex Court, as indicated above and looking to the facts and
circumstances of the case, I dispose of this revision petition with the following directions:

(i) The non-bailable warrants issued by the trial Court are converted into summons.
The trial Court is directed to summon the accused persons through serving of the
summons along-with a copy of the complaint.
(ii) If the accused persons seem to be avoiding the summons, the trial Court in second
circumstance should issue the bailable warrant; and
(iii) In third circumstance, when the court is fully satisfied that the accused persons
are avoiding the court's proceedings intentionally, the process of issuing the non-
bailable warrant should be resorted to.
(iv) Mr. Mahesh Gupta, who is appearing on behalf of the accused petitioners is
directed to produced the petitioners before the trial Court on 15th April, 2009 and
thereafter the trial Court will release the petitioners on bail as per his satisfaction.
(v) The trial Court is further directed to expedite the trial, as early as possible.

Since the main revision petition has been disposed of, therefore, the stay order dated 6.3.2009 passed
by this Court is vacated and the stay application, filed therewith, also stands disposed of.

Revision petition disposed of with some directions.