D.S. Rajan and Others vs The State

The Honourable Mr. Justice S. Palanivelu

This Criminal Revision is preferred to call for the entire records pertaining to the order with regard to the issuance of non-bailable warrant as against the petitioners, passed by the learned Judicial Magistrate No. II, Usilampatti, Madurai District in C.C. No. 73 of 2011 on 18.07.2011 and set aside the same.

The Petitioners are the accused 1 to 5 in Crime No. 91 of 2009, on the file of the Respondent police. The Respondent police, after investigation, filed a charge-sheet against them u/s 147, 924(b) and 506(II) of Indian Penal Code. The learned Judicial Magistrate, Usilampatti, took the case on file in C.C. No. 73 of 2011 and issued Non-Bailable Warrant to A1 to A5. This is the order which is challenged before this Court. The following is the said order:

Taken on file on 18.07.2011 as C.C. No. 73 of 2011. Documents perused and taken on file for the offences u/s 147, 294(b) and 506(II) of Indian Penal Code. Issue NBW to A1 to A5. Call on 10.08.2011.

Mr. R. Anand, the Learned Counsel appearing for the Petitioners would contend that as mandated by Section 87 of Code of Criminal Procedure. without recording the reasons for the issuance of Non-Bailable Warrant, the Court cannot issue non-bailable warrant directly to the accused and hence, the order is not sustainable.

Heard the learned Government Advocate (Crl. side) appearing for the respondent who would submit that there is no wrong in the order challenged before this Court.

Section 87(a) of Code of Criminal Procedure. goes thus:

Issue of warrant in lieu of, or in addition to, summons.-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, a 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.

It is the statutory requirement that if the Court intends to issue warrant for the arrest of the accused in the circumstance adumbrated in sub Section (a) of Section 87 of the Code, it has to record the reasons in writing justifying its action to issue warrant of arrest. The Court is expected in law to record the reason that it has got reason to believe that the accused have absconded or they will not obey the summons. Without assigning any reason, if the Court passes an order of issuance of non-bailable warrant, it is not sustainable in law.

In the case on hand, the order challenged before this Court does not show the application of mind on the part of the Court below as required by Section 87 of Code of Criminal Procedure. The Court below has not recorded any reason for the issuance of non-bailable warrant directly on taking the case on file. Hence, the order is not lawful which is liable to be set aside and it is accordingly set aside.

In the result the Criminal Revision Case is allowed directing the learned Judicial Magistrate No. II, Usilampatti, to issue summons to the accused in accordance with Section 87 of Code of Criminal Procedure. and proceed the case in accordance with law. Consequently, connected miscellaneous petitions are closed.