Prashanth V. Boccassam vs Ramendar Nanjangud

K.N. Phaneendra, J.—Petitioners who are arrayed as accused Nos. 1 and 3 in C.C. No. 21689/2013 have approached this Court seeking quashing of the order passed by the 7th Additional CMM, Bangalore, issuing NBW against accused Nos. 1 and 3 vide order dated 20.06.2014.

I have heard the arguments of the learned Counsel for the petitioners and learned HCGP.

The mistake committed by the learned Magistrate Court is called in question by this Court. There is no necessity for issuing any notice to the respondent. Hence, notice to be issued to the respondent is dispensed with.

I have carefully perused the records. It is seen that one Mr. Ramendar filed a private complaint against the petitioners and another for the offence punishable under sections 499 & 500 read with section 34 of IPC and also under sections 107, 108, 109, 114, 120A and 120B of IPC. The learned Magistrate after taking cognizance, recorded sworn statement of the complainant and vide orders dated 27.12.2013, he ordered issue of summons to the accused persons returnable by 22.3.2014. Again on 22.3.2014 summons to the accused was once again ordered through Malleshwaram police station. On 20.6.2014, in pursuance of the summons, the accused No. 2 appeared before the Court, filed application under section 436 of Cr.P.C. and was enlarged on bail. On the same day, the learned Magistrate issued NBW against accused Nos. 1 and 3 and posted the case to 03.11.2014. This order is called in question before this Court.

Learned Counsel for the petitioners strenuously contends that through out the order sheet, nothing is mentioned as to what happened to the summons issued to accused Nos. 1 and 3. There is no order passed by the learned Magistrate that the summons issued was served on accused Nos. 1 and 3 in under utter disobedience to the summons issued by the Court, they did not appear and therefore, it warranted the Magistrate to issue NBW to accused Nos. 1 and 3. Therefore, the said order is bad in law. In this back ground, learned Counsel cited a ruling reported in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, , wherein the Apex Court has in detail dealt with under what circumstances the Court can issue warrant. At Head note E, the Apex Court has dealt with said aspect in the following manner.

(E) Criminal P.C.(2 of 1974), S. 73-Constitution of India, Art. 21-Non-bailable warrant-Issuance-Deprives person of his liberty-Must be issued with due care-Circumstances in which non-bailable warrant should be issued- Enumerated.

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the Courts have to extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

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:

(i) It is reasonable to belief that the person will not voluntarily appear in Court; or

(ii) The police authorities are unable to find the person to serve him with a summon; or

(iii) It is considered that the person could harm someone if not placed into custody immediately.

As far as possible, if the Court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the common or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.

In complaint cases, at the first instance, the Court should direct serving of the summons. In the second instance, should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court''s proceedings intentionally, the process of issuance of the non-bailable warrant should be resorted to."

In view of the above decision, it is very much clear that even in non-bailable offence cases, at the initial stages, the Court has to issue summons and if there is a necessity to issue NBW, then only, the Court to have recourse for issuing of such NBW. The Court has to consider right of liberty of a person as a precious right guaranteed under the Constitution which are to be obliged. In view of the aforesaid decision and considering the facts of the case, it is very much clear that the Magistrate has not at all applied his mind in a judicious manner and verified as to what happened to the summons/N.B.W. issued to accused Nos. 1 and 3. The order sheet produced will not depict as to what circumstances warranted the Magistrate to issue NBW against accused Nos. 1 and 3. Therefore, I have no hesitation to set-aside the order passed by the learned Magistrate vide order dated 20.6.2014 in issuance of NBW. However, it is open to the learned magistrate to examine the records about service of summons to accused Nos. 1 and 3. If summons are not served, learned Magistrate has to issue fresh summons to accused Nos. 1 and 3. If summons have been returned as refused by accused persons, then only the Magistrate is at liberty to pass NBW against accused Nos. 1 and 3.

With these observations, the petition stands allowed. The order passed by the learned Magistrate on 20.06.2014 in C.C. No. 21689/2013, issuing NBW against accused Nos. 1 and 3 is hereby set-aside.