State of Rajasthan vs Sunil Suji and Others

Shiv Kumar Sharma, J.—Impugning the judgment dated January 11, 2008 rendered by learned Additional. Sessions Judge (Fast Track) No. 2 Jaipur City, the State of Rajasthan submitted petition seeking leave to appeal u/s 378 (1) and (3) of the Code of Criminal Procedure (for short ''Cr.P.C.'')

On July 1, 2008 this Court granted leave and issued no bailable warrants against the accused respondents. The order reads as under:

It is contended that all the accused respondents were in jail. We have been taken through the impugned judgment and our attention has been drawn towards various illegalities committed by learned trial court. It is further contended that the admission of accused respondents Rohtash ad Dharmendra respectively incorporated in Ex.P-74 and Ex.P-75 have been ignored by learned trial court. Recovery of revolver affected u/s 27 of Evidence Act has also not been properly considered.

Leave granted. Accused respondents Sunil Suji, Naseeb Singh, Rohitash @ Chhotu @ Doctor and Dharmendra @ Shastri be summoned through non bailable warrants.

It appears that accused respondents viz. Sunil Suji and Naseeb Singh avoided the service of non bailable warrants and they have been received back unnerved.

Now two applications have been filed by accused respondents Sunil Suji and Naseeb Singh u/s 378(1) and (3) and 482 Cr.P.C. for recalling the order dated July 1, 2008.

We have heard learned Counsel appearing for accused respondents Sunil Suji and Naseeb Singh.

At the outset, we may observe that unless the respondents Sunil Suji and Naseeb Singh surrender themselves pursuant to the aforesaid orders instant applications deserve to be dismissed on this ground alone.

Long and short o the submissions of learned Counsel is that before granting leave under Sub-section (3) of Section 378 Cr.P.C. notice was required to be issued to the accused respondents. We find no merit in this submission. In U.J.S. Chopra Vs. State of Bombay, the scope of appeal against an acquittal Was considered and it was observed as under:

The extraordinary remedy of an appeal against an acquittal received a statutory recognition for the first time in 1872 in the interest of public safety, peace and order.

Cr.P.C. does not make any difference between the ambit of an appeal from a conviction and that from a conviction and that from an appeal against acquittal except that an appeal against conviction is as of right and lies to courts of different jurisdiction depending on the nature of sentence, the kind of trial and the court in which it was held, whereas an appeal against an order of acquittal can be made only to the High Court by the State Government with previous leave of the High Court or by a complainant (where the case started on a complaint) with special leave of the High Court.

At this juncture it will be apt to consider Section 390 Cr.P.C. which reads as follows:

When an appeal is presented u/s 378, the High Court may issue a warrant direction that the accused be arrested and brought before it or any subordinate court, and the court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.

Section 390 corresponds to Section 427 of the repealed code. In the present section the word and figure "Section 378" are substituted for the words and figures "Section 411-A Sub-section (2) of Section 417" in the old section. Except for this change, no other changes are made. Under this section the High Court has the power to re-arrest the accused pending the disposal of an appeal against this acquittal.

The Constitution Bench of Hon''ble Supreme Court in State of U.P. v. Poosu AIR 1976 SC 1750 while considering Section 427 of the repealed Code, propounded as under:-(para 10)

This is the rationale of Section 427. As soon as the High Court on perusing a petition of appeal against an order of acquittal, considers that there is sufficient ground for interfering and issuing process tote respondents, his status as an accused person and the proceedings against him revive. The question of judging his guilt or innocence in respect of the charge against him, once more becomes subjudice.

At the time of granting leave to appeal against the impugned judgment of acquittal, it was considered by this Court that since proceedings against accused-respondents revived and charges against them once more became sub-judice issuance of non bailable warrants was found necessary on the basis of material on record.

In Emperor v. NGA E Moung (1915) 30 IndCas 654, it was held that issuance of notice to the accused respondents before issuing warrants u/s 427 (new Section 390) was not necessary. It was observed as under:

The next ground is that a warrant for Nga E Moung''s arrest u/s 427, Criminal Procedure Code, should not have been issued without previous notice to him u/s 439(2). In my opinion a warrant of arrest is not an order to the prejudice of the accused within the meaning of Section 439(2). To hold that, it would, 1 consider, render useless the conferment on the High Courts as a Court of Revision the powers of an Appellate Court u/s 427, Criminal Procedure Code.

Facts of J.J. Merchant Vs. S.N. Chaturvedi and Another, , on which reliance is placed by learned Counsel, are distinguishable. In that case the Supreme Court observed as follows:-(Para 9)

In our opinion, on facts of this case since at a preliminary stage the court considered it necessary to hear the respondents-accused before granting leave and directed the issuance of notice, judicial propriety required the court at a subsequent stage to see that the respondents were served with court notice and to hear them before granting leave. Had the Court not issued the notice earlier it might have been a different thing in law. The Court once having thought it necessary to hear the respondents before granting leave, in : our opinion, ought not to have granted leave ex-parte more so in the background of the fact that the notices earlier directed to be issued were not served because of lack of steps taken by the petitioners before it, hence, we think it appropriate that the impugned order granting leave should be set aside and the matter be remanded back to the High Court to hear the appellants herein on the question of grant of leave to appeal.

In Rekha v. The state of Rajasthan, DB Criminal Revision Petition No. 102/2004 the accused respondents Ranjeet Singh, Vijay Hada and Dilip Mathur avoided service of bailable warrants, therefore non bailable warrants were issued against them to ensure their presence on July 30, 2008 they surrendered themselves in the court, the order is issuance of non bailable warrants was recalled.

In State of Rajasthan v. Mubeen and Ors. DB Criminal Appeal No. 58/2006 decided on September 12, 2006 all the accused respondents were present and application u/s 390 Cr.P.C. was filed by the State of Rajasthan to commit the accused respondents to prison.

As a result of the above discussion, we find merit in the application and the same accordingly stand dismissed.

It is unfortunate that non bailable warrants issued against accused respondents have been returned back unserved by he police. Let fresh non bailable warrants be issued against the accused respondents. The Deputy Registrar (Judicial) shall send the warrants to be served though Director General of Police Rajasthan