1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. Criminal Misc. Petition No.110/2009 Fool Chand Luhar vs. State of Rajasthan Date of Order: 27.1.2009 HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Sanjay Singhal for the petitioner. Mr. K.S.Chandel, P.P. A complaint was filed by respondent no.2 against the petitioner before the Judicial Magistrate, Ist Class Chhipa Barod, District Baran under Sections 323, 504, 392/34 IPC and under Section 3 of the SC/ST (Prevention of Atrocities) Act. The Judicial Magistrate after recording the statement of the complainant and his witnesses under Sections 200 and 202 Cr.P.C. vide order dated 21.11.2005 took cognizance against three accused persons including the petitioner and summoned all the three accused persons through arrest warrant. The petitioner through his counsel moved an application before the Judicial Magistrate for converting the arrest warrant into bailable warrant. This application has been rejected by the Judicial Magistrate vide order dated 17.11.2008. Feeling aggrieved of the order summoning the petitioner through arrest warrant, the petitioner 2 has filed the instant petition under Section 482 Cr.P.C. with the prayer that the arrest warrant issued under Section 70 Cr.P.C. be converted into bailable warrant. Heard the learned counsel for the petitioner and learned P.P. and perused the impugned orders. Learned counsel for the petitioner has submitted that a private complaint was lodged against the petitioner but if the nature and gravity of the allegations levelled against the accused persons including the petitioner are taken into consideration they are not such that he should be summoned through arrest warrant. The accused persons are police officers. Therefore, it is a fit case for converting the arrest warrants into bailable warrants. In support of his submissions learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal & Ors. {(2007) 12 SCC 1}. Learned P.P. on the other-hand has opposed the arguments and has submitted that the complaint was lodged in the year 1997, cognizance was taken by the learned Magistrate in the year 2005 and till date the accused persons including the petitioner have not appeared before the court. If the court below has used its discretion to summon the accused through arrest warrant, it cannot be said that 3 there is any illegality in the order or that the order is against the ends of justice. On the basis of the above submissions, learned P.P. has submitted that no interference is required to be called for in the order and this misc. petition deserves to be dismissed. The arguments advanced by the learned counsel for the petitioner is felicitous because once the arrest warrant is issued, then it can either be executed or cancelled. The bailable warrant can be issued by the Court under Section 71 of the Cr.P.C. Under this Section the Court can only order the release of the person arrested and can lay down the condition for such release. The question as to whether a direction for the release of the arrested person on bail should be endorsed on the warrant under this Section, is entirely left to the discretion of the Court issuing the warrant. Under Section 70 of the Cr.P.C. if an arrest warrant is issued, then it for the person concern against whom arrest warrant is issued either to appear before the Court or to get the warrant executed. Once the person against whom an arrest warrant is issued, appears before the Court and moves a petition, it is obligatory on the part of the Court to decide the same on the same day without adjournment and without remanding the accused to a few days. 4 The cited judgment also speaks about the same proposition. However, conveniently the relevant paragraphs of the cited judgments may be reproduced hereunder:- “46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal proposition, the impugned judgment cannot be sustained. 47. Before parting with this appeal, we would like to discuss an issue which is of great public importance i.e. how and when warrants should be issued by the court ? It has come to our notice that in many cases bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involved and without exhausting the available remedies issued non-bailable warrants. The trial court disregarded the settled legal position clearly enumerated in the following two cases. 48. In Omwati vs. State of U.P. (2004) 4 SCC 425 this Court dealt with a rather unusual matter wherein the High Court firstly issued bailable warrants against the 5 appellant and thereafter by issuing non-bailable warrants put the complainant of the case behind the bars without going through the facts of the case. This Court observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days, but without any justification whatsoever. She suffered because facts of the case were not considered in proper perspective before passing the orders. The Court also observed that some degree of care is supposed to be taken before issuing warrants. 49. In State of U.P. vs. Poosu {(1976) 3 SCC 1} in para 13, the Court observed : “13.....Whether in the circumstances of the case, the attendance of the accused-respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as, the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of public and State. 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: . 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 6 person could harm someone if not placed into custody immediately. 54. 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 f iled with an oblique motive. 55. In complaint cases, at the first instance, the court should direct serving of the summons along with 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 issuing non-bailable warrants.” The overall result and conclusion of the cited judgment is that non-bailable warrant should be issued to bring a person before the court when summoned accused does not appear before the court or the bailable warrants would be unlikely to have the desired result. In the instant case the petitioner neither has appeared before the court nor execution of the 7 arrest warrant has yielded any result. The accused persons are police personnel and they should have appeared before the court as soon as they came to know about issuance of the arrest warrants but they failed to do so. In the circumstances it is the sole discretion of the court to summon the accused persons by any of the mode provided in the Cr.P.C. and the court below has chosen to summon the accused through arrest warrant. Even after lapse of near about 4 years the accused persons including the petitioner have not submitted to the jurisdiction of the court. Therefore, in my opinion, the order passed by the court below summoning the accused persons including the petitioner through arrest warrant is perfectly legal and no interference is warranted in the order dated 21.11.2005 by this Court while exercising jurisdiction under Section 482 Cr.P.C. Consequently, the criminal misc. petition stands dismissed with the direction that if the accused petitioner surrenders before the court and moves application for grant of bail then the bail application shall be decided expeditiously and if possible on the same day. BHANWAROO KHAN,J. bairwa 8 S.B.Criminal Misc. Stay Application No.103/2009 in S.B. Criminal Misc. Petition No.110/2009 Fool Chand Luhar vs. State of Rajasthan Date of Order: 27.1.2009 HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Sanjay Singhal for the petitioner. Mr. K.S.Chandel, P.P. Since the main misc. petition has been dismissed, this stay application also stands dismissed. BHANWAROO KHAN,J. bairwa