P.A. Saleem and others vs State and Others

Janarthanam, J.—In these actions, non-bailable warrants issued by lower Courts concerned, under certain eventualities, as contemplated by

the Code of Criminal Procedure, 1973 (Act No.2 of 1974 for short ''Code''), for the arrest and production of the respective petitioners, facing trial

for certain specified offences, are sought to be ''recalled'', by invoking the inherent powers of this Court u/s 482 of the Code, straight away, even

without approaching the Courts concerned, which issued such warrants, for ''cancellation''.

The entertainment of actions of this nature by this Court, it appears, is of recent origin and warrants issued by the Courts below had been re-

called even without issuance of any notice whatever, by a direction to the respective persons to appear before the Courts concerned on a date to

be specified, besides ordering suspension of execution of the same till such time. Or course, in some cases, reports of the Courts concerned have

also been called for, before exercise of such power.

This sort of entertainment of such petitions and exercise of power as revealed by the latest statistics furnished to this Court, seems to have

encouraged frequent absence of petitioners--accused facing trial, which led to the prolongation of trials for years together, causing agonising

situations, not only to the other co- accused, if any, but also to the witnesses for prosecution, thereby causing concern to the right of speedy trial, a

cherished goal enshrined under Article 21 of the Constitution of India (for short ''Constitution''), in the administration of criminal justice system Such

an alarming situation chocked the conscience of this Court to make an investigation, as to whether such exercise of power u/s 482 of the Code is

legally permissible and justified. Such an investigation/vrma facie reveals that the power hitherto exercised for such a purpose was not in

accordance with law. Consequently, without adopting the earlier procedure in all these actions, learned Counsel concerned were required to put

forth their submissions as to the tenability or otherwise of such exercise of powers u/s 482 of the Code, besides extending invitations to Members

of the Bar to participate in the discussion, since a decision on such a question is, of paramount importance in the administration of criminal justice

system. Members of the Bar also responded nicely to such an invitation.

Mr. M. Karpagavinayagam, learned Counsel for the petitioner in Crl.O.P.No. 3995 of 1994, besides pleading the cause of his client, also

projected his arguments, in an admirable fashion, in the general discussion, ably supported by the Members of the Bar, Messrs. A. Packiaraj,

N.Jothi, V. Sairam, Ravi Anandan, V. Padmanabhan, Jayachandran, S. Venkateswaran and Surya Selvaraj. Arguments so put forth by them had

adopted by other learned Counsel appearing for the remaining petitioners.

Mr. R. Raghupathy, learned Additional Public Prosecutor, with all circumspection and caution, projected his verbal submissions, in a sharp and

incisive fashion, in a bid to solve the tangle posed in these actions, and thereby rendered valuable assistance to the Court.

The word ''warrant'' is not at all defined in the Code. But, nonetheless ,the said word appears in many a place in the Code. Such being the case,

better it is, I think to understand the etymological meaning of such a word, as given in the Shorter Oxford English Dictionary of Historical

Principles, Volume-II (Third Edition) at page 2387, reflecting thus:-

WARRANT: I.5. Command or permission of a superior, which frees the doer of an act from blame or legal responsibility; authorisation; sanction.

II. 1.A writing issued by the sovereign, an officer of a State, or an administrative body authorizing those to whom it is addressed to perform some

act.

A cursory perusal of the various provisions of the Code reveals the issuance of warrants for certain purposes, either during enquiry, trial stage or

post-trial stage. The salient provisions adumbrated u/s 70, 71, 87, 93, 111, 113, 204 and 205 6f the Code deal with situations empowering the

Court for issuance of a warrant during enquiry or trial stage, while Ss. 413, 414, 418 to 423 and 425 contemplate contingencies under which a

warrant can be issued post- trial.

Section 204 dealing with issue of process, figures in Chapter XVI - commencement of proceedings before Magistrate - take cognizance of an

offence, in the sense of there being sufficient ground for proceeding, process is required to be issued, either in the form of summons or warrant to

the accused, depending upon the nature of the case and the fulfillment of certain requirements. If a case is a summons case, summons shall

ordinarily be issued for the attendance of an accused. Similarly, a warrant shall be issued in a warrant case for his appearance or production.

However, neither a summons nor a warrant shall be issued against an accused, unless a list of the prosecution witnesses had been filed. The

provisions of this section shall not, however, be deemed to affect the provisions of S. 87 of the Code, wherein the Court''s power for issuance of a

warrant, in lieu of or in addition to summons is preserved intact and such power may be exercised, after recording its reasons in writing.

u/s 205 of the Code, personal attendance of an accused may be dispensed with and he may be permitted to appear by his pleader. But the

Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct personal attendance of the accused and if

necessary, enforce such attendance, as had been provided for in the Code.

Section 111 and 113 figure in Chapter VIII dealing with security for keeping the peace and for good behaviour. Section 111 prescribes that

when a Magistrate acting u/s 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such

section, he shall make an order in writing setting forth the submission of the information received, the amount of the bond to be executed, the term

for which it is to be in force, and the number, character and class of sureties (if any) required.

Section 113 deals with a situation or contingency, empowering a Magistrate either for the issuance of a summons or a warrant. If the person

required to show cause is not present in Court, the Magistrate shall issue summons requiring him to appear, or, when such person is in custody, a

warrant directing the officer, in whose custody he is to bring him before the Court, provided that whenever it appears to such Magistrate, upon the

report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is

reason to fear the commission of breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate

arrest of such person, the Magistrate may, at any time, issue a warrant for the arrest.

Thus, the situations, as narrated above, arise, as already stated, either during the course of an enquiry or trial. The effect or the result to be

produced by issuance of a warrant for arrest of a person accused of an offence before Court takes away the valuable liberty of a citizen of our

motherland. That perhaps was the reason for enactment of various provisions, as referred to above, circumscribing or limiting the powers of the

Magistrate to issue warrant only when certain primordial requisites are satisfied and not otherwise. Such sanguine provisions, while safeguarding

the liberty of such citizen do not hesitate to snatch away such priceless liberty of such individual, by issuance of a warrant of arrest and production

before Court, with laudable objective of moving freely the wheels of administration of criminal justice system, without any impediment or

obstruction whatever ensuring the right of speedy trial of such persons, in tune with the goal as enshrined under Article 21 of the Constitution.

Section 70 of the Code deals with the form of warrant of arrest and duration. Every warrant of arrest issued by a Court under this Code shall

be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. Every such warrant shall remain in force, until it is

canceled by the Court which issued it or until it is executed.

Section 71 dealing with the power to direct security to be taken prescribes that any court issuing a warrant for the arrest of any person may in

its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court

at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall

release such person from custody. The endorsement shall state the number of sureties; the amount in which they and the person for whose arrest

the warrant is issued, are to be respectively bound; and the time at which he is to attend before the Court. Whenever security is taken under this

section, the officer to whom the warrant is directed shall forward the bond to the Court.

Reflecting the provisions of Section 70 and 71, Form No.2 warrant of arrest, had been prescribed in the Second Schedule of the Code.

The provisions such as Section 413, 414, 418 to 423 and 425 of the Code are relatable to issuance of warrants for levy of fine or execution of

sentence, by the competent authorities-post-trial in nature. The provision u/s 93 is relatable to a warrant issued for a search and seizure during

enquiry. They are not germane for consideration of the issue on hand.

It is not as if a warrant of arrest issued by a Court is not capable of being cancelled by the very Court, which issued it. Sub- section (2) of

Section 70 may be recapitulated at this juncture and it prescribes, that every such warrant shall remain in force until it is cancelled by the Court

which issued or until it is executed. It is thus clear that once a warrant is issued, it shall remain in force, even beyond the date of hearing, until its

cancellation or its execution. Once power is given to the Court, which issued it to cancel it, it is but proper to knock at the doors of the said Court,

by filing an application for cancellation of the warrant so issued, on sufficient cause being shown therefore .Once such an application is filed, it is

but necessary for the court to consider such an application and pass an order, without brooking any sort of a delay and penning down reasons

therefore .If the order so passed is favorable to the accused, there is no need for him to agitate the matter any further. If it goes against him, then,

such an order has to be construed, in the eye of law, as a final order, liable to be further agitated in revisions, either u/s 397 before Court of

Session or u/s 401 before this Court, no doubt a concurrent jurisdiction conferred upon those Courts, by the Code.

It is brought to my notice that pernicious practice adopted by the Magistracy uniformly in the State was to insist on the production of the

accused, against whom warrants of arrest had been issued at the time of enquiry on an application for cancellation of the warrant being filed and

the accused so present is invariably taken into custody and sent to prison, while orders thereon are passed leisurely in a belated fashion. It is high

time that such a practice, if adopted by the Magistracy, is stopped forthwith and the Magistracy learns the art of passing orders then and there

without causing any least delay. The personal appearance of the accused voluntarily before magistracy, who issued the warrant for his arrest, by no

stretch of imagination, can be construed as if the warrant that had been issued had been executed, so that nothing survives there for cancellation. It

must be remembered here that by taking scent of the pendency of a warrant for this arrest and production before Court, a person against whom

the same is issued, can appear before Court voluntarily and file an application for cancellation of the warrant so issued on stated grounds. In such

an eventuality, if the order to be passed ends in his favour, then it goes without saying that the warrant so issued must have to be cancelled and

necessary direction issued therefore to the concerned police officer, to whom the same had been issued, recalling the same and the person against

whom the same had been issued, is bound over to appear before Court on a date fixed for trial and all subsequent dates till the trial is over. In case

the order ends against him, he has to be immediately taken into custody and sent to prison with a direction to the prison authorities for his

production before Court on the earliest date fixed for trial and on all other subsequent dates till the trial is over. At the same time, nothing prevents

him to move for bail and on such application being made, the Magistracy, on being satisfied by recording reasons therefore ,may release him on

bail on his executing a bond for a specified sum with sufficient number of sureties, for such sum, for securing his appearance on the dates fixed for

hearing or trial, as the case may be.

In such process, the liberty of a citizen, accused of an offence, facing trial, is better preserved, in the sense of not snatching away his priceless

liberty on grounds, not contemplated by the salient provisions adumbrated under the Code, besides preserving the constitutional goal of right to

speedy trial, as enshrined under Article 21 of the Constitution. It is not as if an aggrieved accused, on being sent to prison, by the refusal of the

cancellation of a warrant so issued or consequent bail, is not having any other remedy. If he feels that an order so passed is the resultant product of

perverse appreciation of the materials placed, he could very well canvass the correctness or otherwise of the order, by resorting to file revisions

before competent forums, as earlier stated and thereafter, even by way of further remedy, if so advised, u/s 482 of the Code, if grounds for

resortment to such a course existed.

Simplicitor, recall of a warrant, in exercise of power u/s 482 of the Code, in anyone of these actions, is not legally permissible and this will be

patent, on a cursory perusal thereof. The said section prescribes that nothing in this Code, shall be deemed to limit or affect the inherent powers of

the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any

Court or otherwise to secure the ends of justice. It is thus patently clear that the inherent power is capable of being exercising either to give effect

to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice.

''Re-call'' of a warrant can, by no stretch of imagination, be stated to come under the former clause, to give effect to any order under this

Code, which would mean that this Court has power to see whether the warrant that has been issued by a Magistrate u/s 70 had been executed by

the issuance of a proper direction to the police officer, or any other person, to whom the same had been issued, if such an officer is keeping the

warrant, without executing it, thereby hampering the progress of speedy trial. In view of specific provisions engrafted under Sub-clause (2) of

Section 70 of the Code for the redress of the grievance of an aggrieved accused and further remedy by way of revision either u/s 397 or 401 of

the Code, simpliciter re-call warrant cannot be stated to attract the latter clause also, namely, to prevent the abuse of the process of any Court or

otherwise to secure the ends of justice.

Most of the Members of the Bar, who participated in the lively discussion, made a fervent appeal, at the concluding portion of their arguments,

leave alone legal niceties involved in the problem - that the practice of re-calling warrant simpliciter u/s 482 of the Code evolved by this court,

adopted and followed hitherto by various learned Judges, need not at all be disturbed, inasmuch as such disturbance is likely to affect the

professional career of the Members of the Bar at this distance of time. No doubt true it is, that I am not an exception to such a course. The fact

that such a practice had hitherto been followed is by itself no ground to stick on to such a practice, unless the same is having the sanction of law.

This sort of a practice had its origin, by assumption of power u/s 482 of the code, without making an investigation therefore .The impelling

occasion or moment has now come to decide the tenability or otherwise of such a practice, when especially it tilted the very foundation of the

smooth functioning of the administration of criminal justice system, in the sense of creating or causing agonising situation by prolongation of trials,

especially in heinous crimes of murder and what not, by reason of indiscriminate and wanton absence of one or other of the accused, where there

are more than one, by turns and by getting warrants issued to secure their appearance or production before Court, re-called by this Court, u/s 482

of the Code, with an ulterior motive of hampering the progress of trial, that what little bit of evidence available in a case is irretrievably getting lost

either by death or by creation of a situation, making it almost impossible for the investigating agency to trace the witnesses or by tampering, getting

their memories failed etc., in the process of passage of sands of time and thereby getting innumerable acquittals, as revealed by recent statistics, as

earlier adverted to, rudely shocking, not only the conscience of this Court, but also eroding the faith of the society in the very system of

administration of criminal justice in Courts, to which Judges themselves should not be responsible, either knowingly or unknowingly, some times by

abuse or misuse of their power.

Worthy it is, at this junction, to recapitulate here, what Lord Denning, a true living legend of law, wrote in one of his books, ""WHAT NEXT

IN THE LAW?"", under the topic or caption, ''THE JUDGES THEMSELVES'' at page 330;

There remains the most touchy question of all. May not the Judges themselves sometimes abuse or misuse their power? It is their duty to administer

and apply the law of the land. If they should divert it or depart from it - and do so knowingly - they themselves would be guilty of a misuse of

power. So we come up against Juvenal''s question, Sed quis custodiet ipsos custodies? (But who is to guard the guards themselves?)

.....Every Judge on his appointment ""discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past

- and - always will - be vigilant in guarding over freedoms. Someone must be trusted. Let it be the Judges.

In view or the discussion as above, the following positions emerge:-

(1) Issuance of a warrant of arrest by a Court under this Code shall remain in force beyond the date fixed for its return, until it is cancelled or

executed.

(2) Since the Court, which issued the warrant has the power to cancel it, it is but necessary for the person| against whom a warrant of arrest had

been issued to approach the said Court, by his personal appearance, for its cancellation, which issued it.

(3) Once a person accused of an offence against whom a warrant of arrest had been issued makes his personal appearance, with a petition for its

cancellation, before the court,which issued it, it behoves on its part not to take him into custody and send him to prison immediately after his

appearance; but to pass an order on such petition, forthwith, without brooking any sort of a delay and if the order so passed ends in his favour, he

shall be bound over to appear before court on an earliest date fixed for hearing or trial, as the case may be, or otherwise, he could be taken into

custody forthwith and sent to prison, with a direction to the prison authorities for his production before Court on the earliest date fixed for such

hearing or trial and on such other dates till the trial is over, so as to enable it to proceed, with ease and grace, and without any obstruction

whatever, thereby not affecting in the least his right to speedy trial, a goal to be achieved, as enshrined under Article 21 of the Constitution; or on

his application, being presented, release him on bail, on his executing a bond for a specified sum, with sufficient number of sureties, for such sum to

secure his appearance on the dates fixed for hearing or trial, as the case may be.

(4) However, a person, aggrieved by an order of refusal of the cancellation by a Magistrate, who issued the same, can further agitate the same, if

he so desires, by filing a revision, either u/s 397 or 401 of the Code, and then resort to invoke the inherent power of this Court u/s 482 of the

Code, if grounds for resortment to such a course existed; and

(5) Section 482 of the Code is not at all attracted for simpliciter ''re-call'' of a warrant; but, on the other hand, it is getting attracted for execution of

a warrant, by issuance of a direction to a police officer or for that matter, any other person to whom it is issued, for its immediate compliance.

In view of the aforesaid positions of law, better it is, I fell, this order is circulated to all Judicial Officers in the State of Tamil Nadu. However,

instead of the Registry taking copies of this order and circulating them to all the subordinate Judicial Officers, in the State of Tamil Nadu, which in

fact, is a stupendous task, I feel such number of copies of the orders, as there are Sessions Judges and Chief Judicial Magistrates in the State of

Tamil Nadu could be taken, which may not pose any serious problem to the administration of this Court and circulate such of those copies to those

Sessions Judges and Chief Judicial Magistrates, with a direction to them that after receipt of a copy of this order, they should take xerox copies of

the same and circulate them to all the Subordinate Judicial Officers in their respective Divisions/Units.

However, ordering for taking copies of this order and circulating them to the Subordinate Judicial Officers, I feel, is a domain pertaining to

administrative power and function of My Lord, the Honorable the Chief Justice. If straightaway, a direction is given by me for such circulation, it

will tantamount to encroaching upon such administrative functions of My Lord, the Honorable the Chief Justice. Therefore, the best course, I feel,

in the circumstances, would be for the registry to place a note before My Lord, the Honorable the Chief Justice on this aspect of the matter and get

My Lord, the Honorable the Chief Justice''s approval and take such numbers of copies of the order and despatch the same to the intended Judicial

Officers.

In view of what has been stated above, all these Criminal Original Petitions are dismissed, as not maintainable.