Chandra Swami vs CBI

Usha Mehra, J.—The learned CMM after taking cognizance had ordered for the issuance of bailable warrants against the petitioner.

Aggrieved by the order of issuing of non- bailable warrants against him, the petitioner has come up before this Court. Order has been assailed, inter alias on the ground that the petitioner was already enjoying the concession of bail ever since 1988. There was no fresh material available on record for the Court to issue non-bailable warrants. Issuance of non- bailable warrants amounted to cancellation of his bail which he was already enjoying. For cancellation of bail very strong reasons are required. The Trial Court ought to have issued summons in such an eventuality, particularly when the petitioner was enjoying the concession of bail. There was no application of C.B.I, that the bail be cancelled. Mere filing of the charge sheet by itself was no ground to cancel the bail. So much so even the C.B.I, in the charge sheet prayed that summons be issued against the petitioner. This shows the C.B.I, was not labouring under any apprehensions about petitioner''s absconding or would not appear. In fact C.B.I. was fully aware that the petitioner was on bail and had not misused the same.

To appreciate the arguments of the petitioner, we must understand as to under what circumstances this process was issued. A case of cheating by a non-resident Indian was lodged against the petitioner and his co-accused. It was under investigation when the petitioner applied for bail. The said bail was granted to him keeping in view his medical status coupled with the fact that evidence was yet to be collected. The C.B.I, after investigation and recording of statements and after collecting evidence prepared the charge sheet. The said charge sheet was filed in the Court of learned CMM, Delhi. The CMM took cognizance and in order to procure petitioner''s attendance issued non-bailable warrants.

Mr. Ashok Arora appearing for the petitioner contended that once the petitioner was enjoying the concession of bail, the Magistrate could not have issued non-bailable warrants. This shows non- application of mind. Section 87 of the Code of Criminal Procedure (in short ''Code'') which governs Section 204 of the Code clearly spell out that before issuing warrants the Magistrate must record the reasons for his satisfaction. But in the case in hand that has not been done, hence the issuance of non-bailable warrants was without jurisdiction and bad in law. If what Mr. Arora con tends is admitted that Section 87 governs Section 204 of the Code, then his contention has to be accepted and the order of issuing non- bailable warrants on this account must be held to be bad in law because admittedly no reasons for issuing warrants as required u/s 87 of the Code have been furnished in this case. But unfortunately, the interpretation of Mr. Arora based on Sub Section (5) of Section 204, to the effect that Section 87 governs the provisions of Section 204 cannot be accepted. Section 87 of the Code is an enabling provision and confer a discretion upon the Court to issue a warrant in lieu of summons. The provisions of Section 87 empowers even in a summon case to issue warrant to secure the appearance of a person. For doing so the Court has to record its reasons, in writing, for issuing such a warrant in lieu of summons or in addition to summon. Therefore, it would not be correct to say that whenever the Court at the time of taking cognizance in a warrant case issues warrants, it has to record reasons for doing so.

Section 204 which falls under Chapter XVI of the Code and which is reproduced as under, deals with two aspects i.e. issuing of the process by the Court in a summon case and issuing of the process in a warrant case. When the said Court issues process it means the Court has taken cognizance of the offence and has decided to initiate proceedings. Section 204:

(1) If in the opinion of a Magistrate taking Cognizance of an offence there is sufficient ground for proceeding, and the case appears to be,

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub Section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub Section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this Section shall be deemed to affect the provision of Section 87.

It is well settled by a long catena of decisions that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence in support of the same. The Court has only to form a prima facie satisfaction whether to proceed against the accused. The Magistrate has not to enter into a detailed discussion of the merits and demerits of the case. Once he forms this opinion then he will proceed to (i) issue summons in a summons case, (2) warrant in a warrant case but if he thinks that even in a warrant case summon be issued, he can do so provided he thinks it fit.

A warrant case and summon case have been defined in Clause (X) & (W) of Section 2 of the Code while in a summon case a Magistrate is required to issue a summon, in a warrant case he has discretion to issue either a warrant or a summon. This far u/s 204. But at the same time, the Legislature in its wisdom must have released that even in a summon case, a Magistrate may require to issue warrant keeping the exigency in view. Section 87 of the Code provides a discretion to the Magistrate, of course, this discretion of issuing warrants in a summon case can only be exercised after recording his special reasons for doing so u/s 87 of the Code.

Section 87 of the Code reads as under: -

A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, warrant for his arrest -

(a) If, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

Section 90 of the Code, which is reproduced as under, provides that the provisions of Chapter VI relating to summons and warrants would apply to every summons and every warrants of arrest issued under this Code.

The provisions contained in this Chapter relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

Bare reading of both of these sections leads to the conclusion that Section 87 is a partner of Section 204, it enables the Magistrate while taking cognizance to issue warrants even in summon case which in the absence of this partner, the Magistrate u/s 204 itself could not have the power to do so. Keeping this principle in mind, If we read Sub-section (5) of Section 204 it makes the intention of the Legislature very clear.

u/s 204(1)(a) the mandate of the Legislature is that in a summon case only summons can be issued whereas under Clause (b) in a warrant case discretion has been given to the Magistrate. It was to give discretion even in a summon case that Magistrate was empowered to resort to Section 87 of the Code. That is why Sub Section (5) says that by the provisions of this Section the powers and discretion of the Magistrate would not get effected u/s 87. Reading of Sub Section 5 of Section 204, by no stretch of imagination, would mean that Section 204 gets governed by the provision of Section 87 nor it can be interpreted that whether it is a summon case or warrant case, the Magistrate is bound to give reasons before issuing the process. If this interpretation is accepted it would negate the mandate of the Legislature.

Having said that provisions of Section 87 are supplemental and in aid of the provisions of Section 204, it is not possible to agree with the contention of Mr. Ashok Arora that no warrant can be issued unless, as stipulated in Section 87 of the Code, special reasons are recorded in writing. As already observed above, the eventuality for recording such reasons would arise only if in a summon case the Magistrate thinks of issuing a warrant. It is nowhere stipulated u/s 87 of the Code that in a warrant case warrant cannot be issued unless the Magistrate assigns reasons in writing. However, u/s 204(1)(b) if in a warrant case, the Magistrate wants to issue summons and if he thinks fit, he can do so even without assigning any reason. The Legislature was not oblivious of the fact that in a summon case which normally deals with petty offence cases no warrant is to be issued. The reason for the same is obvious. If in a summon case warrant is issued without any special reasons it will amount to harassment to the accused and Therefore, to safeguard the interest of the accused, it has been stipulated under Sea on 87 of the Code that reasons must be assigned in writing by the Magistrate for issuing warrants in a summon case. But warrant cases which are of grievous nature, Legislature clearly empowered the Magistrate to issue warrants and for that he was not to assign any reasons. Hence, it can safely be concluded that Section 87 does not govern Section 204 but is only an enabling provision.

Next limb of Mr. Arora''s arguments is that the Magistrate ought to have exhausted the process firstly by issuing summon because the petitioner being already on bail which he never mis-used, there was nothing before the Magistrate to fear that petitioner in response to summon would not attend his Court. Even the C.B.I, in the charge sheet prayed for the issuance of summon. In the facts of this case, this submission of Mr. Arora has a force. Once the petitioner was enjoying bail by the order of the Court then in the normal circumstances summon should have been issued for procuring his attendance. Mere filing of the charge sheet was no ground to issue non-bailable warrants. Even the prosecuting agency in the charge sheet indicated that summon be issued. In this background, to my mind, the learned CMM was not right in issuing at the first instance the non-bailable warrants. Full Bench of the Andhra Pradesh High Court in the case of Smt. Sheik Khasim Bi v. The State 1986 CRI.L.J. 1303 observed that in a case where cognizance is taken and process is issued, if the Court grants anticipatory bail under Sub-section (1) of Section 438 of the Code, police officer shall execute the process, namely, the warrants, by arresting the accused and producing him before the Magistrate who shall release him on bail pursuant to the order of anticipatory bail by the High Court or the Court of Session. It means if the accused is enjoying the concession of bail, be that an anticipatory bail or regular, and thereafter charge sheet is filed, the Court takes cognizance and issues process, then in the normal circumstances the Court should not resort to issuing warrants even if it is a warrant case. In this case the Court was not oblivious of the fact that the petitioner was on bail. This fact finds mention in the charge sheet itself. Once the Magistrate knew that petitioner was on bail resorting to issuing the process of warrant is bad in law. At first instance summon should have been issued. But unfortunately that stage is over. The petitioner cannot ask now to reverse the clock. The bail already granted has been cancelled by the learned CMM. What petitioner contends may be legally correct but the order of issuing the process u/s 204 merged with the subsequent order of 4th May,1996 passed by the learned CMM. Even though the order of issuing non- bailable warrant was bad in law yet it has become only academic discussion because much water thereafter has flown.