Rajesh Mehta vs State of Jharkhand and Others

Ravi Nath Verma, J—Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has questioned the legality of the order dated 20.03.2015 and 16.06.2015 passed by the learned Judicial Magistrate, Daltonganj whereby and whereunder the proclamation and Process for attachment of property have been issued against the petitioner under Sections 82 and 83 of the Code of Criminal Procedure (in short ''the Code'') respectively in connection with G.R. Case No. 2431 of 2013 arising out of Pandwa P.S. Case No. 60 of 2013 instituted under Sections 143, 341, 323, 353, 427, 447 and 290 of the I.P.C.

The prosecution case, which is based on the self-statement of the informant- the then Officer-in-charge, Pandwa Police Station, in short, is that on 21.12.2013 at about 22:30 hours, after receiving information that there is a blocked at NH-75 due to some differences occurred between the workers of Usha Martin and villagers, the informant reached there and saw that the petitioner along with other accused persons were leading the mob of 150-200 persons and blocked the NH-75. The members of the mob damaged the glasses of the Dumper of Usha Martin. The coal loaded on the dumber were found to be scattered there. Anyhow, the blocked could be removed.

It appears from the entire order sheet of court below enclosed with supplementary affidavit filed by the petitioner that the First Information Report was placed before the Chief Judicial Magistrate, Palamau at Daltonganj on 24.12.2013 and thereafter the case record was transferred to the court of Judicial Magistrate and it appears from the order sheet dated 12.05.2014 that the Court fixed the next date on 02.09.2014 awaiting final form. On 02.09.2014 as it appears, no order sheet was maintained. On the very next date i.e. 20.03.2015, a requisition was filed by the Investigating Officer alongwith the execution report of warrant of arrest of the petitioner and other accused persons with prayer to issue Proclamation under Section 82 of the Code as the accused persons are evading their arrest, the court below issued the Proclamation. Again on 16.06.2015, a requisition was filed by the Investigating Officer alongwith the execution report of the proclamation with prayer to issue the Process for attachment of property of the accused persons under Section 83 of the Code, which was also issued by the Court.

Learned counsel Ms. Niki Sinha appearing for the petitioner assailing the orders of the court below seriously contended that without applying the judicial mind, the court below in a mechanical manner issued the proclamation under Section 82 of the Code and the order of attachment of property of the petitioner under Section 83 of the Code without declaring him absconder. It was also submitted that on mere perusal of the order sheets enclosed with the writ application, it would appear that there is no order-sheet on record showing any warrant of arrest ever issued by the court and even if it was issued, there is no whisper in the order sheet and the subsequent orders, as such the orders of issuance of Proclamation and attachment are non-speaking and liable to be quashed in the light of the mandates given by the Hon''ble Supreme Court in the case Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and Another, AIR 2011 SC 3393 : (2011) 6 CTC 228 : (2011) 10 JT 253 : (2011) 4 RCR(Criminal) 212 : (2011) 10 SCALE 233 : (2012) 9 SCC 791 : (2011) 11 SCR 300 : (2011) 5 UJ 3294 : (2011) AIRSCW 5347 .

Contrary to the aforesaid submissions, Mr. Pran Pranay learned counsel representing the State contended that only after filing of requisitions by the Investigating Officer, the Processes under Sections 82 and 83 of the Code were issued as the petitioner was evading his arrest. As such, there is no illegality in the order impugned.

After hearing both the counsels and going through the record of the case and especially the certified copy of the order sheets enclosed with the writ application, I find that the case has been lodged under Sections 143, 341, 323, 353, 427, 447 and 290 of the I.P.C. where the maximum sentence prescribed is two years under Sections 353 I.P.C. or with fine or with both but the court concerned on requisition filed by the Investigating Officer along with execution report of the warrant to the court, issued proclamation under Section 82 of the Code and without applying judicial mind further issued the process under Section 83 of the Code violating the mandates of the Hon''ble Supreme Court. Even it does not appear from the order sheet as to when the warrant of arrest was issued. Even no step was taken to issue summons and bailable warrant for appearance of the accused persons.

In the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, AIR 2008 SC 251 : (2007) 5 CTC 614 : (2007) 11 JT 499 : (2007) 12 SCALE 15 : (2007) 10 SCR 847 : (2007) AIRSCW 6659 , the Hon''ble Supreme Court while dealing with the same situation observed in paragraphs 50 to 55 as follows:--

"50. 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 be 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 large 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.

When 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;

� It is reasonable to believe that the person will not voluntarily appear in court; or

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

� 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 summon 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. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

In complaint cases, at the first instance, the court should direct serving of the summons alongwith the copy of the complaint. If the accused seem to be avoiding the summons, the court, 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 proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuance non-bailable warrants.

The power 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 charged with the commission of an offence of a heinous crime and it is feared that he 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."

In the light of the guidelines given in the aforesaid case, for better appreciation, a reference of Section 73 of the Code, which deals with the issuance of warrant, is necessary, which reads as follows:--

"Section 73. Warrant may be directed to any person - (1) The Chief Judicial magistrate or a Magistrate of the First Class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence, and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71."

From bare perusal of the above Section, it appears that it confers a duty upon the Magistrate to issue warrant of arrest on three categories of persons namely (i) escaped convict, (ii) proclaimed offender and (iii) a person, who is accused of non-bailable offence and is evading arrest. The Hon''ble Supreme Court in the case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Another (supra) considered the issue of execution of non-bailable in paragraph 9, which reads as follows:--

"9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual''s rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice". Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding."

Apparently, the court below has not considered the mandates given in the above two judgments and without applying his judicial mind and without following the guidelines and showing any reason or recording any satisfaction, issued proclamation and attachment of property under Sections 82 and 83 of the Code respectively. The submission of the learned counsel representing the State that on a requisitions filed by the Investigating Officer showing that the petitioner was evading arrest, proclamation and processes were issued, I do not find any substance in his submission. Hence, I am constrained to hold that the orders issuing the proclamation and the attachment of property under Sections 82 and 83 of the Code respectively by the order impugned are liable to be set aside.

In the result, the aforesaid Writ Petition (Cr.) is allowed. The orders passed by the court below dated 20.03.2015 and 16.06.2015 issuing proclamation and processes respectively are, hereby, quashed. The court below is directed to proceed in accordance with law.