Jamuna Prasad Jaiswal vs State Of Chhattisgarh And Ors

@JUDGMENT-JUDGMENT

First information report (FIR) was registered against the petitioner for offences punishable under Sections 294, 506, 323 and 427 of the IPC by

Police Station Marwahi in which he was declared absconded by issuing permanent warrant of arrest on 21-2-2018, thereafter, he filed W.P.

(Cr.)No.491/2018 in which this Court granted him liberty to file an application under Section 70(2) of the CrPC for cancellation of permanent warrant

of arrest before the concerned Judicial Magistrate which he filed and ultimately, he was released on bail on 5-1-2019 and pursuant to that order of

release of the petitioner on bail, the learned Judicial Magistrate First Class, Marwahi directed to recall the un-executed permanent warrant of arrest

already issued against him. However, the un-executed warrant was not recalled and ultimately, the petitioner was arrested on 13-3-2019 and he was

released on the same day.

This writ petition has been filed merely on the ground that once the petitioner was enlarged on bail and he has furnished bail bonds, permanent

warrant of arrest ought to have been recalled by any means by the Judicial Magistrate First Class who had issued the warrant, as mandated by the

Supreme Court in the matter of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another  (2012) 9 SCC 79,1 but that was not recalled

and ultimately, the petitioner was arrested and thus, he has suffered trauma for which the Station House Officer and other concerned are responsible,

as such, enquiry be directed against them. Even otherwise, the petitioner was also not produced before the Court after arrest, that is also totally

uncalled for and is arbitrary action on the part of the Station House Officer.

Return has been filed by the State / respondents opposing the averments made in the writ petition stating that though the order issuing permanent

warrant of arrest was recalled while passing order under the application filed under Section 70(2) of the CrPC, but that was never communicated by

the concerned Magistrate to the Station House Officer, Police Station Marwahi, and therefore the petitioner was arrested on 13-3-2019 and he was

produced before the Court of Judicial Magistrate (Circuit Court) at Pendra Road and on being informed that he had already been granted bail, he was

immediately released. As such, on account of information about recall of warrant not being supplied by the concerned Court to the Station House

Officer, the petitioner was arrested and that would amount to sufficient cause for his arrest and therefore the writ petition deserves to be dismissed.

Mr. Neeraj Kumar Jain, learned counsel appearing for the petitioner, would submit that arrest of the petitioner after having been enlarged on bail

and after having furnished bail bonds is totally arbitrary and uncalled for and it is flagrant violation of human rights at the hands of the State authorities

for which appropriate legal action be taken against the respondents â€" police officers by issuing appropriate writ or direction. He would further

submit that the petitioner is a senior citizen aged 65 years and is an income tax payee and is also a member of the Nagar Shanti Samiti of Police

Station Marwahi, as such, the writ petition deserves to be allowed.

Mr. Mateen Siddiqui, learned Deputy Advocate General appearing on behalf of the State / respondents, would submit that the learned Judicial

Magistrate First Class after enlarging the petitioner on bail and after furnishing bail bonds did not inform the Station House Officer, Marwahi

therefore, the petitioner was arrested in compliance of the permanent warrant of arrest which remained un-executed till 13-3-2019, otherwise, there

was no reason not to comply the order of the Court and to arrest the petitioner. He would further submit that the affidavit of the Superintendent of

Police, Bilaspur and that of the Director General of Police, Raipur have already been filed. It is a bona fide mistake on account of non-communication

of the order of the Court to the police authorities recalling the warrant of arrest, as such, the writ petition has no merit and deserves to be dismissed.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available

on record with utmost circumspection.

True it is that by the order of the jurisdictional Magistrate, the petitioner was released on bail on 5-1-2019 and the learned Magistrate also directed

to recall the un-executed permanent warrant of arrest already issued against him, but the un-executed warrant could not be recalled and mean while,

the petitioner was arrested on 13-3-2019 and he was released on the same day.

The question is, whether the arrest of the petitioner was unauthorised or it is supportable in law?

In Raghuvansh Dewanchand Bhasin (supra), in identical fact situation, the Supreme Court has held that arrest of the accused in such a situation

pursuant to warrant cannot be said to be without authority of law and held as under: -

“23. It is true that the appellant not only suffered humiliation in the public gathering and remained in judicial custody for some time but we feel that

for what he had undergone on 15-8-2002, some blame lies at his door as well. Being a practising Advocate himself, the appellant was fully conversant

with the court procedure and, therefore, should have procured a copy of memo/order dated 12 -8-2002, whereby the non-bailable warrant was

cancelled by the court. As noticed above, admittedly, the appellant applied and obtained a copy of such order only on 16-8-2002. Though the conduct

of Respondent 2 in arresting the appellant ignoring his plea that the non-bailable warrant issued by the court in a bailable offence had been cancelled,

deserves to be deplored, yet, strictly speaking the action of Respondent 2 in detaining the appellant on the strength of the warrant in his possession,

perhaps motivated, cannot be said to be per se without the authority of law. In that view of the matter, in our opinion, no other action against

Respondent 2 is warranted. He has been sufficiently reprimanded.â€​

In the aforesaid matter (para 28.12), their Lordships of the Supreme Court have clearly directed that in the event of cancellation of the arrest

warrant by the court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the

authority concerned, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the

aforesaid registers. A copy of such order shall also be supplied to the accused. Even “Format of the Register†has been prescribed by the

Supreme Court in the end of its report. But it appears that the order of the Supreme Court was not complied with by the learned Magistrate though

directed for recalling of the unexecuted permanent warrant of arrest, but warrant was not actually recalled which led to the ultimate arrest of the

petitioner and he was detained in jail for some time. Â Even it appears that the copy of the order granting bail was also not supplied to the accused by

which he could not show to the police officer arresting him. It is the case of the petitioner that despite showing that he has been granted bail and

furnished bail bond, yet, he was arrested by the concerned police officer, though the police officer in affidavit filed has denied the said fact before this

Court, but the act of the police officer arresting the petitioner against the permanent warrant of arrest, as it was not recalled till his arrest on 13-3-

2019, cannot be said to be unauthorised and without authority of law in view of the decision of the Supreme Court in Raghuvansh Dewanchand Bhasin

(supra). However, the petitioner is at liberty to proceed against his unauthorised detention and may claim damages in accordance with law.

The Director General of Police, Chhattisgarh has filed his own affidavit. Paragraphs 7 and 8 of the said affidavit state as under: -

“7. That, in consonance of the order passed by the order of this Hon’ble Court dated 19.12.2019 and to comply the order passed in the

aforesaid matter by the Hon’ble Supreme Court, a direction has been issued to all the Superintendents of Police, Chhattisgarh and Higher Police

Authorities to comply the order passed by the Hon’ble Supreme Court more particularly in para 23 (g) of the order. Copy of instruction letter

dated 19.02.2018, is being annexed herewith as ANNEXURE R/4.

That, in consonance of the order passed by the order of this Hon’ble Court dated 19.12.2019 and to comply the order passed in the aforesaid

matter by the Hon’ble Supreme Court, instructions have been issued to the Senior Superintendents of Police, Raipur/Durg (C.G.) and Higher

Police Authorities regarding service of the permanent arrest warrant, issued by the Court. Copy of instruction letter dated 08.01.2020, is being

annexed herewith as ANNEXURE R/5.â€​

Annexure R/5 issued by the Director General of Police states as under: -

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I hope and trust that the directions issued by the Supreme Court in Raghuvansh Dewanchand Bhasin (supra) regarding recall of unexecuted

warrant of arrest and consequential direction of the Director General of Police (Annexure R/5) will be complied with by all the concerned without fail

to avoid situation like present.

However, Registry is directed to place the matter before the Hon’ble Chief Justice for consideration and / or appropriate action against the

concerned Judicial Magistrate for not recalling the unexecuted warrant of arrest despite the decision and mandate of the Supreme Court in

Raghuvansh Dewanchand Bhasin (supra), thereby the petitioner remained in jail for some time due to the unexecuted warrant of arrest.

The writ petition is disposed of with the aforesaid observation / direction. No order as to cost(s).