Sanjay Kumar Thakur vs The State of Jharkhand and Others

Ravi Nath Verma, J—The sole petitioner by invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India has prayed for quashing the order dated 07.08.2015 passed by learned Additional Chief Judicial Magistrate, Jamshedpur whereby the court below after taking cognizance of the offence under Sections465/467/468/469/471/419/420/506/120B/34 of the Indian Penal Code, directed to issue non bailable warrant against the petitioner to secure his attendance before the court.

The prosecution case, which are relevant for the purposes of adjudication of the issue involved in this case, in short, is that at the instance of A.S.I. of Chakuliya Police Station, Telco P.S. Case No. 209 of 2014 was instituted under Sections 465/467/468/469/471/419/420/506/120B/34 of the Indian Penal Code and during investigation one Gunjan Kumar and Sudhir Kumar Thakur, who were also accused in one Chakuliya P.S. Case No. 28 of 2014, were arrested and in their confessional statement they disclosed the name of this petitioner Sanjay Kumar Thakur @ Sanjay Thakur and one Saukat Ali. The police after investigation submitted charge-sheet against Gunjan Kumar and Sudhir Kumar Thakur and the investigation against the petitioner and another accused Saukat Ali was kept pending. Subsequently the final form was submitted against the petitioner but the learned court below after considering the conduct of the accused-petitioner as well as the case diary found prima facie case against this petitioner also who was at that time posted as District Social Welfare Officer, Seraikella and took cognizance of the offence relying upon the earlier charge-sheet filed against the two other accused persons Gunjan Kumar and Sudhir Kumar Thakur and directed to issue non bailable warrant against this petitioner as indicated above.

Mr. R.S. Majumdar, learned senior counsel assailing the order impugned by which after taking cognizance, non bailable warrant was issued against the petitioner, seriously contended that the court below after considering conduct of the petitioner and relying upon the evidences collected against two other accused persons in the earlier charge sheet took cognizance of the offence against this petitioner and directed to issue non bailable warrant of arrest without following the procedure prescribed in law and mandates of the Hon''ble Supreme Court. It was also submitted that the petitioner has no objection against the order taking cognizance but without applying judicial mind, the court below in a mechanical manner issued non bailable warrant in place of issuing summons for the appearance of the petitioner. Learned senior counsel further relying upon a judgment of the Hon''ble Supreme Court in the case Vikas Vs. State of Rajasthan, (2014) 7 AD 731 : (2014) CriLJ 183 : (2013) 4 RCR(Criminal) 948 : (2013) 11 SCALE 23 : (2014) 3 SCC 321 submitted that after examination of all the prosecution witnesses in that case, a petition was filed under Section 319 of the Code and the court considering the evidence of the prosecution witnesses directed to issue non bailable warrant against the accused for his trial with other accused persons of that case. The Hon''ble Supreme Court quashed the order of the issuance of non-bailable warrant and directed the trial court to issue summons against the accused of that case. Learned senior counsel further submitted that in this case also the mandates given by the Hon''ble Supreme Court has not been followed as such the order impugned is liable to be quashed.

Learned counsel representing the State fairly submitted that the court below has not followed the mandates of guidelines given by the Hon''ble Supreme Court.

Having heard the learned counsels and after going through the records of the case and specially the order impugned, I find that the learned court below without applying judicial mind, in a mechanical way, directed to issue warrant of arrest. In the case cited by the learned counsel for the petitioner Vikas v. State of Rajasthan (supra) while enumerating the circumstances in which a non bailable warrant can be issued held in Paragraph 17 as follows:

"17. In the legislative history for the purposes of bail, the terms "bailable" and "non-bailable" are mostly used to formally distinguish one of the two classes of cases viz. "bailable" offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offence to such a person is left by the legislature in the court''s discretion to be exercised on a consideration of the totality of facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 CrPC. The power under Section 319 CrPC being discretionary must be exercised judiciously within extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused 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. The conditions for the issuance of non-bailable warrant are reiterated in Inder Mohan Goswani and in State of U.P. v. Poosu, wherein it is mentioned that (Inder Mohan Goswami case, SCC p. 17 para 53)

"53. 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 firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 CrPC would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case."

From bare reading of the mandates given in the aforesaid case, it is clear that execution of non bailable warrant directly involves the curtailment of liberty of a person, it cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. In the instant case, the court below without following the mandates of the Hon''ble Supreme Court directed to issue non bailable warrant of arrest against the petitioner.

Regard being had to the facts and circumstances enumerated above, I find merit in this writ application. It is, accordingly, allowed. The order impugned dated 07.08.2015 to the extent of issuance of non bailable warrant against the petitioner is, hereby, quashed. The court below is, thus, directed to issue summon against the petitioner for his appearance.