Bhagwan Sahai And Anr vs State Of Rajasthan And Anr

Learned counsel appearing for the petitioners submits that the learned ACJM vide order dated 24.10.2019 has rejected their the application moved under Section 70(2) Cr.P.C. and has refused to convert the non-bailable warrants into bailable warrants wrongfully. It is his submission that in the case where cognizance has been taken against the accused petitioners under Sections 376(1) and 377 IPC, is in the background that investigation was conducted thrice by the Investigating Agency of different ranks and thrice final report was submitted stating that no case is made out against the accused petitioners. Thus, even if, the cognizance has been taken by the concerned Court on protest petition, there was no occasion to have issued the non-bailable warrants and the learned ACJM ought to have converted the non-bailable warrants into bailable warrants, once the petitioners have submitted the application under Section 70(2) Cr.P.C. before the concerned Court and ready to be present for the trial. Learned counsel further submits that both the petitioners are government servants.

Learned counsel has relied upon the judgments of the Supreme Court in Inder Mohal Goswami & Anr. Versus State of Uttaranchal & Ors. reported in (2007) 12 SCC 1 and in Vikas Versus State of Rajasthan in Criminal Appeal No.1190 of 2013 decided on 16.08.2013.

Learned Public Prosecutor has opposed the criminal misc. petition.

I have considered the submissions and find that learned ACJM vide his order dated 27.09.2019 after having discussed the entire facts and circumstances of the case and having examined the final report submitted by the police, reached to the conclusion that prima facie, case is made out against the accused petitioners and cognizance was taken. On the basis of the statements recorded under Section 164 Cr.P.C. of the prosecutrix, offence under Section 377 IPC was found to be made out against petitioner number 1 - Bhagwan Sahai and offence under Section 376(1) IPC was found to be made out against petitioner number 2- Surajmal, having noticed the nature of the offences, which are non-bailable. Learned Magistrate has issued non-bailable warrants. Thereafter, an application was moved under Section 70(2) Cr.P.C. by the accused petitioners, which has been rejected vide order dated 24.10.2019 on the ground that the offences alleged and cognizance whereof taken, are of non-bailable and punishable with life imprisonment and triable by the Sessions Court.

In Inder Mohan Goswami & Anr. (supra), the Apex Court has held as under:

"51. 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.

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 straight-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."

The aforesaid view was reiterated by the Apex Court in Vikas (Supra).

Having carefully gone through the aforesaid law as laid down by the Apex Court, I am satisfied that the accused petitioners charged with the commission of an offence of a heinous crime. Thus, in the these facts and circumstances, it comes within the exception carved out in Inder Mohan Goswami & Anr. (supra). Even otherwise, once an offence is of non-bailable category, learned Magistrate could not have converted warrants of arrest from non-bailable to bailable as at the time of examining the application under Section 70(2) Cr.P.C., he/she is not examining the case where concerned person is required to be granted bail or not. The jurisdiction regarding grant of bail lies elsewhere.

In view thereof, the impugned order(s) passed by the learned Magistrate does not call for any interference by this Court. The criminal misc. petition is found to be devoid of merit and the same is accordingly dismissed.