Rajaram Yadav and Another vs State of Rajasthan and Another

Narendra Kumar Jain-II, J.—Accused-petitioners have filed this criminal misc. petition u/s 482 Cr.P.C., challenging the order dated 23.07.2013 passed by Judicial Magistrate, First Class, Shahpura, District Jaipur (hereinafter referred to as ''the Trial Court'') in Criminal Case No. 420/2012 (182/2009) (State Vs. Rajaram & Another) pending for offence u/s 420, 406, 120B IPC, whereby the learned Trial Court dismissed the application filed u/s 70(2) Cr.P.C. by the accused-petitioners for converting the arrest warrants into bailable warrants. Brief facts of case are that the Respondent No. 2-complainant filed a private complaint on 19.03.2008 before the court concerned against the accused-petitioners for the offences under Sections 419, 420, 468, 467, 471, 465, 406, 120B IPC and on the basis of the complaint, FIR No. 224/2008 was registered at Police Station Shahpura, District Jaipur against the accused-petitioners. The police started investigation in the matter and after completion of investigation proposed F.R. in the matter with the observation that the matter is of civil nature. Feeling aggrieved with the F.R., the complainant-Respondent No. 2 moved protest application before the concerned court and the learned court after recording the statements under the provisions under Sections 200 and 202 Cr.P.C. took cognizance against the accused-petitioners for the offences under Sections 420, 406, 120B IPC and also issued warrants of arrest against the petitioners vide order dated 09.04.2009. Feeling aggrieved with the order dated 09.04.2009, the accused-petitioners preferred revision petition before the Additional Sessions Judge, Shahpura, District Jaipur (hereinafter referred to as ''the Revisional Court''), but the learned Revisional Court dismissed the revision petition vide order dated 16.03.2012. Thereafter, the accused-petitioner preferred S.B. Criminal Misc. Petition No. 1217/2012 before this Court and this Court vide order dated 17.07.2012 set aside the order dated 16.03.2012 and remanded the matter back to the Revisional Court to decide the matter afresh. Learned Revisional Court after hearing both the parties, again dismissed the revision petition vide order dated 20.06.2013. The accused-petitioners subsequently submitted application u/s 70(2) Cr.P.C. for converting warrants of arrest into bailable warrants before the learned Trial Court, but the learned Trial Court vide order dated 23.07.2013 dismissed the application filed by the petitioners u/s 70(2) Cr.P.C. In arriving at its conclusion, the learned Trial Court in the impugned order dated 23.07.2013 observed as under:

Being aggrieved by the impugned order dated 23.07.2013 passed by the learned Trial Court, this petition u/s 482 Cr.P.C. has been filed by the petitioners.

Heard learned counsel for the accused-petitioners as well as learned public prosecutor appearing on behalf of the Respondent No. 1-State and perused the relevant papers placed on record.

Learned counsel for the petitioners submitted that impugned order passed by the Trial Court is illegal, perverse, contrary to the facts and circumstances of the case and hence deserves to be set aside. Learned trial court has observed that in cognizance order directly non-bailable warrant need not be issued. During the course of arguments learned counsel for the petitioners submitted that petitioners are ready to appear before the learned Trial Court, therefore, he prayed that the arrest warrants issued against the petitioners may be converted into bailable warrants.

Learned public prosecutor appearing on behalf of the Respondent No. 1-State submitted that he has no objection, if the arrest warrants are converted into bailable warrants.

From the impugned order it appears that the learned Trial Court has not looked into the relevant provisions. Section 70 Cr.P.C. is reproduced as under:

Form of warrant of arrest and duration.-(1) 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.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

In view of the provisions of Section 70 Cr.P.C., non-bailable warrant can be cancelled by the Court, which has issued it, therefore, the Court which has issued the non-bailable warrant can pass an order in respect of it subsequently including modification or alteration of the warrant. It does not amount to recalling of the earlier order, because such power is given to the concerned court by the Statute (Cr.P.C.).

Section 362 Cr.P.C. reads as under:

Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

If such power is exercised by the concerned Court, in my considered opinion it is not hit by Section 362 Cr.P.C., because it provides that "save as otherwise provided by this Code". When sub-section (2) of Section 70 Cr.P.C. provides the power for cancelling of non-bailable warrant by the Court which had issued it, then it is saved under this provision.

Looking to the facts and circumstances of the case as well as the law laid down by the Hon''ble Supreme Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, and also observations of learned Trial Court given in the impugned order, in my opinion, interest of justice would be met, if the warrants of arrest issued against the petitioners Rajaram Yadav and Smt. Vimla Devi are converted into bailable warrants.

Consequently, after taking into consideration the facts and circumstances of the present case, the instant petition is disposed of with the direction to the accused-petitioners to appear before the learned Trial Court on or before 31.10.2013, so as to furnish the bail bonds to the satisfaction of the trial court. Till then, the non-bailable warrants issued against the petitioners shall not be executed.

Deputy Registrar (Judicial) is directed to send a copy of this order to the concerned Court as well as concerned Sessions Court immediately. Since misc. petition has been disposed of, the stay application stands disposed of.