Non-bailable warrant cannot be issued without the execution of service report: High Court of Jharkhand

 Cr.M.P. No. 7021 IN THE HIGH COURT OF JHARKHAND RANCHI 1.Khubhi Mahto @ Khugi Mahto s o late Yugal Mahto aged about 63 2.Ranjit Prasad @ Ranjeet Kumar s o Khubhi Mahto aged 28 years 3.Kalawati Devi w o Khubhi Mahto aged about 61 years All r o village Chandra Marani PO and PS Sariya District Giridih ….. Petitioners Versus The State of Jharkhand …... Opposite Party CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Yogesh Modi Advocate For the State : Mr. Vishambhar Shastri APP 3 22.06.2021 Heard Mr. Yogesh Modi the learned counsel for the petitioner and Mr. Vishambhar Shastri the learned State counsel. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard. 3. The learned counsel for the petitioners is directed to remove the defects within two weeks. If the defects are not removed the office shall list the matter before the appropriate Bench. 4. The petitioner has filed this petition for quashing the orders dated 06.04.2019 11.09.2019 and order dated 11.02.2021 passed in Cr. Rev. No.520. 5. Mr. Yogesh Modi the learned counsel appearing for the petitioner assailed the impugned order on the ground that on 14.02.2017 bailable warrant was issued against the witnesses and the next date was fixed on 04.04.2017 and the petitioners were absent. No PWs were present for evidence and the next date fixed was 23.05.2017. On 01.05.2017 the records of the case was transferred to the court of Judicial Magistrate 1st Class Giridih. The conducting counsel for the petitioners left Giridih and settled in Tenughat and the petitioners could not locate the case. On 13.08.2018 the case was transferred to the court of learned SDJM Giridih and on 27.09.2018 again the case was transferred to the court of Sri Nishi Kant Judicial Magistrate 1st Class Giridih. He submits that as the conducting lawyer was shifted to Tenughat the petitioner have not been able to locate the file. He further submits that after framing of charge w.e.f. 14.09.2015 till 14.02.2017 the petitioners regularly attended the court proceeding but no witnesses turned up for the prosecution in the case. He submits that by order dated 01.11.2017 bail bonds of the petitioners were cancelled and non bailable warrant was issued. He submits that at the outset bailable warrant is required to be issued. He further submits that there is no report of service of execution of non bailable warrant. He further submits that straight way without awaiting the service report of non bailable warrant process under section 82 Cr.PC was issued by order dated 06.04.2019 and by order dated 11.09.2019 process under section 83 Cr.PC has also been issued against the petitioners. He further submits that there is no satisfaction of the Magistrate while issuing the processes under section 82 and 83 Cr.PC. According to him the guidelines of this Court as held in the case of “Md. Rustum Alam @ Rustam v. State of Jharkhand ” reported in 2020JLJR 712 has not been followed. 6. Mr. Shastri learned counsel appearing respondent State tried to justify the impugned orders and submits that there is no illegality in the impugned orders. In view of the above facts and considering the order sheets which have been annexed with the petition it transpires that after cancellation straightway non bailable warrant has been issued without awaiting the execution of service report under section 82 Cr.PC and process under section 83 Cr.PC has been issued. The guidelines issued by this Court in “Md. Rustum Alam @ Rustam v. State of Jharkhand ” reported in 2020JLJR 712 has not been followed. 8. Accordingly 06.04.2019 11.09.2019 and order dated 11.02.2021 are quashed. The petitioners are directed to appear before the court below on or before 26.07.2021 and the court below will consider the case of the petitioners considering that earlier the petitioners were appearing regularly. 9. SI Cr.M.P. No. 7021 stands disposed of. 

Summary: Non-bailable warrants are usually issued in cases where the accused has showed signs of absconding or the presence of the accused person cannot be secured. However it is necessary that the service report is executed before any non-bailable warrant can be issued. This was upheld by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Khubhi Mahto v The State of Jharkhand [Cr. M.P. No. 707 of 2021] on the 22nd of June 2021. On 14th February 2017, a bailable warrant was issued against the witnesses and the next date was issued against the witnesses of the case, however in the next hearing on 4th April 2017, the petitioner was absent. The PWs did not appear to present evidence causing the next hearing to be further postponed to 23rd May 2017. On 1st May 2017 the records for the case were transferred to the court of Judicial Magistrate in Giridih. The petitioner’s counsel left for Tenughat and so the case could not be located. The case continued to be shifted multiple times and witnesses mostly failed to show up in court. The petitioner, Khubhi Mahto contended that he was regular in attending court since the charges were framed, yet no witnesses turned up for the prosecution of the case and on 1st November his bail bonds were cancelled and a non-bailable warrant was issued under Section 83 and 83 of the Cr.PC without awaiting the execution of the service report. It was also added that the guidelines issued by the High Court of Jharkhand in the case of Md. Rustum Alam v State of Jharkhand [2020(2) JLJR 712] where it was held that a person could not be declared as absconding without recording a satisfactory reason for the same, were not followed in the immediate case. For these reasons the petitioner pleaded that the orders dated 6th June 2019 and 11th September 2019 will both be quashed for not following the correct legal procedures.