Guruveer Singh. vs State Of Madhya Pradesh

The challenge in this revision preferred u/S. 397/401 of Cr.P.C. is to the interlocutory order dated 30.01.2019 passed by Second Additional Sessions Judge, Sheopur in Sessions Trial No.400081/2016 whereby allowing of an application u/S.319 Cr.P.C., the learned trial judge taking cognizance of offences punishable u/S.294, 307/34 and 326/34 and 506-II IPC against the petitioner has issued warrant of arrest for securing the presence of petitioner in the trial.

Learned counsel for the petitioner restricts the challenge to the said order to the extent it directs for issuance of arrest warrant against the petitioner by relying upon the decision of the Apex Court in Vikas Vs. State of Rajasthan reported in (2014)3 SCC 321 (Para-12 to 17). The relevant paragraphs 12 to 17 are being reproduced below for ready reference and convenience:-

The only question for consideration before us is whether in the circumstances of the case, the attendance of the appellant could have been best secured by issuing a summon simplicitor or a bailable warrant instead of a non-bailable warrant in an 13application. under Section 319 of the Cr.P.C.

A Perusal of Section 319 of the Cr.P.C. would clearly indicate that on the objective satisfaction of the court a person may be 'arrested' or 'summoned' as the circumstances of the case may require if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. The court should exercise judicial discretion on a consideration of the totality of the facts and circumstances of a given case and in a manner where proper procedures are followed that are fundamental to the right of fair trial of the accused. The section demands more circumspection by the Trial Court while exercising its powers since it confers an extraordinary power and should be used by the court very sparingly thereby ensuring that principles of rule of law and basic tenets of criminal law jurisprudence are not vitiated.

The Constitution of India is the grundnorm- the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution. Therefore, Criminal Law also derives its source and sustenance from the Constitution. The Constitution, on one hand, guarantees the Right to Life and Liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. The issuance of non- bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in the case of Inder Mohan Goswami; 2007 12 SCC 1 and in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Anr; (2012) 9 SCC 791 wherein it has been observed that personal liberty and the interest of the State Civilized countries is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, this demands that the courts have to be extremely careful before issuing non-bailable warrants.

In order to examine the reasoning of the Trial Court, the case is to be understood in its own facts and circumstances. In the instant case, the Trial Court after appreciating the evidence available had reasonable satisfaction from the evidence already collected during the trial that the appellant had committed an offence along with the other accused who had undergone the Trial and therefore issued a non-bailable warrant to seek the attendance of the appellant- herein under an application of Section 319 of the Cr.P.C. To appreciate the present case, it is pertinent to discuss the meaning of 'bailable offences' and 'non-bailable offences' and the circumstances in which a non-bailable warrant can be issued. In the legislative history for the purposes of bail, the term 'bailable' and 'non-bailable' are mostly used to formally distinguish one of the two classes of cases, viz. 'bailable' offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non- bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodized by analogy, disciplined by system and sub-ordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 of the Cr.P.C. The power under Section 319 of the Cr.P.C 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 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 conditions for the issuance of non-bailable warrant are re-iterated in the case of Inder Mohan Goswami (Supra) and in the case of State of U.P. vs. Poosu and Anr; 1976 3 SCC 1, wherein it is mentioned that Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Cr.P.C. would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case.

The court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued.

In view of the above, we modify the orders passed by the Trial Court and confirmed by the High Court, and direct that summons be issued against the appellant for his appearance instead of non- bailable warrants which were ordered to be issued against him."

From the aforesaid, it is evident that the extreme measure of non-bailable warrant of arrest may be adopted only after the other mode of summon fails to achieve the purpose of securing the presence of the person accused.

In the instant case after arraying the petitioner as an accused by invoking Section 319 of Cr.P.C., arrest warrant has been directed to be issued straight away without first adopting the mode of summon.

In view of above law laid down by the apex court, this Court with the consent of the learned counsel for the State who is also heard on the question of admission and does not dispute the aforesaid law laid down by the Apex Court, deems it appropriate to dispose of this petition limine without issuance of any notice to the other side with the following directions:-

The impugned order dated 30.01.2019 passed in Sessions Trial No.400081/2016 by Second Additional Sessions Judge, Sheopur so far as it issues arrest warrant against the petitioner is set aside.

The learned trial judge is directed to issue summons for ensuring presence of the petitioner. In case the said mode of summons does not achieve the desired object, the trial Court shall be free to adopt the extreme measure of warrant of arrest to secure the presence of petitioner.

With the aforesaid directions, the present petition stands disposed of in limine with no cost.