Sevendra Singh Parihar vs State Of M.P

This petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 19.09.2019 passed by JMFC, Lanji,

District Balaghat in RCT No. 506/2019 whereby warrant of arrest has been issued against the petitioner seeking his presence before the said Court.

Although, in relief clause, the petitioner also seeks quashment of entire proceeding but during argument he confined himself to the prayer of

quashment of order dated 19.09.2019.

According to case, the police station Lanji has registered a case against the petitioner and other co-accused person in Crime No. 105/2012 for the

offences under Section 465, 471, 181, 120-B,467 and 468 of IPC as well as section 30 of Arms Act. Since, the petitioner is absconding, therefore,

police filed the charge sheet with Farari Panchnama. Vide order dated 19.09.2019, the Court found sufficient material for taking cognizance against

the petitioner and co-accused person, thus, issued non bailable warrant of arrest against them. At this juncture, it is pertinent to mention that the

initially the case was registered for the bailable offences and petitioner has been enlarged on bail by the police officer but during investigation offence

of Section 467 and 468 has been added in the case which are non bailable offences.

Learned counsel for the petitioner submits that the impugned order issuing arrest warrant against the petitioner declaring him as absconder is bad

and contrary to law. He submits that no offences are made out against the petitioner. After registration of FIR under Sections 465, 471, 181 and 120-

B of IPC as well as Section 30 of Arms Act, the petitioner was granted bail on 07.09.2012. Thereafter, police enhanced the offence of Section 467

and 468 of IPC and filed the charge sheet before the Court. The Court has issued a notice for securing the presence of present petitioner but said

notice was never served upon the petitioner and therefore, the petitioner could not present before the Court. On the date of filing charge sheet, the

petitioner was on bail. The petitioner’s counsel relied the judgment of the Hon’ble Apex Court in the case of Inder Mohan Singh Vs. State of

Uttaranchal, reported in AIR 2008 SC 151 and submitted that order of issuance of non bailable order has violated the principle and guideline issued by

the Hon’ble Apex Court in that case. He also submits that the Court should issue non bailable warrant only if Court is fully satisfy that the

accused is avoiding the Court proceedings intentionally. Personal liberty is paramount. But the learned trial Court without applying the mind in proper

perspective, issued non-bailable warrant against the petitioner which caused great prejudice to the petitioner. With the aforesaid, he prays for

quashment of impugned order.

On the other hand, learned counsel for the P.L. opposes the submission made by the petitioner’s counsel submitting that the offence leveled

against the petitioner are non bailable and petitioner is absconding. Under the Cr.P.C.,there is provision to issue non-bailable warrant in warrant case.

The police has issued notice to the petitioner but he did not appear before the police as well as Court. Hence, the discretion applied by the trial Court is

correct and not interferable.

Heard both the parted and perused the case diary.

Admittedly, initially the FIR was registered against the petitioner for bailable offences of Section 465, 471, 181, 120-B of IPC as well as section 30

of Arms Act and petitioner has been released on bail by the Investigating Officer. Thereafter, the police added the offence of Sections 467 and 468 of

IPC at the time of filing the charge sheet which are non-bailable in nature. The petitioner has filed copy of notice issued by police in which the

petitioner was directed to appear before the Court on 02.08.2019, but it is found that notice has been received by father of petitioner as petitioner was

out of station. Under Cr.P.C., Section 204 Cr.P.C. prescribes the provision of issuance of process and as per Section 204 (1) (b), If in the opinion of a

Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a warrant case, he may issue a

warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear, meaning thereby Magistrate has discretion in issuance of

process keeping in mind the circumstances of the case. In the case of Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791 : (2012) 4

SCC (Cri) 679, the Hon’ble the Apex Court held as under:-

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.

Here in the case, it can be said that the petitioner was not aware of the fact that the charge sheet has been filed against him as notice was not duly

served upon him. He was on bail, therefore, it cannot be said that he was absconding intentionally to avoid the Court. Therefore, in the first instance,

issuance of non-bailable warrant for his non appearance would be harsh for the petitioner.

Therefore, the impugned order dated 19.09.2019 passed by JMFC, Lanji, District Balaghat in RCT No. 506/2019 is hereby set aside. The petitioner

is directed to remain present before the concerning Court on 26.08.2020 for further proceeding of Court. The said Court shall proceed with the case

on his own discretion in accordance with the law. It is made clear that if the petitioner fails to appear before the said Court on the date given, the

learned Court shall be free to issue non bailable warrant of arrest against the petitioner.

Accordingly, this petition is disposed of.