Before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise their discretion cautiously: Jharkhand High Court

 1 Cr. M.P. No. 2719 of 2020 IN THE HIGH COURT OF JHARKHAND RANCHI 1.Gouri Devi wife of Badri Yadav aged about 45 years 2.Gita Devi wife of Sukhdev Yadav aged about 34 years 3.Anju Devi wife of Tribeni Yadav aged about 34 years 4.Jaswa Devi wife of Surendra Yadav aged about 39 years 5.Saryu Yadav son of Lalo Yadav aged about 44 years 6.Kavilas Devi @ Kavilasi Devi wife of Saryu Yadav aged about 39 years All are District Hazaribagh. ….. Petitioners resident of village Buchai PO Kapka PS Barkatha Versus 1.The State of Jharkhand 2.Pachiya Devi wife of Videshi Paswan resident of village Buchai PO Kapka PS Barkatha District Hazaribagh …... Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Prabhat Kumar Sinha Advocate For Resp. State : Mrs. Niki Sinha Spl.P.P 5 16.03.2021 Heard Mr. Prabhat Kumar Sinha the learned counsel for the petitioners and Mrs. Niki Sinha the learned counsel for the State. 2. This criminal miscellaneous 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 petitioners have questioned the legality and validity of the order dated 14.03.2019 passed in SC ST Case No.619 arising out of Barkatha P.S. Case No.615 corresponding to G.R. No.2735 of 2013 and also for quashing the order dated 23.09.2019 whereby processes under section 82 Cr.PC has been directed to be issued. Mr. Prabhat Kumar Sinha the learned counsel appearing for the petitioners submits that by order dated 14.03.2019 the court below has taken cognizance against the accused persons and by the said order without issuing the summons straight way directed to issue non bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non bailable warrant and passed the order dated 23.09.2019 whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed in view of the said order without following the process of law. He submits that the case of the petitioners is covered in the light of the judgment of Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin v. State of Maharashtra’ 2012) 9 SCC 791. Paragraph nos. 12 and 13 of the said judgment are quoted hereinbelow: “12. In Inder Mohan Goswami v. State of Uttaranchal a Bench of three learned Judges of this Court cautioned that before issuing non bailable warrants the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non bailable warrant it was observed: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.” 13. We deferentially concur with these directions and emphasise that since these directions flow from the right to life and personal liberty enshrined in Articles 21 and 22(1) of our Constitution they need to be strictly complied with. However we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioural patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid it is for the court concerned to assess the situation and exercise discretion judiciously dispassionately and without prejudice. Viewed in this perspective we regret to note that in the present case having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings it was not a fit case where non bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are therefore in complete agreement with the High Court that in the facts and circumstances of the case issuance of non bailable warrant was manifestly unjustified.” He further submits that the impugned orders are required 5. to be quashed. followed by the court below. Mrs. Niki Sinha the learned counsel appearing on behalf of the Opposite Party State fairly submits that the due process has not been On perusal of the impugned order dated 14.03.2019 it transpires that on that day the court below has taken cognizance against the accused persons and straight way issued the non bailable warrant in place of issuing the summons against the accused persons. On perusal of the order dated 23.09.2019 it transpires that the direction was issued for issuing the process under section 82 of the Cr.PC. On perusal of the record it transpires that this order has also been passed without receiving any execution report with regard to the non bailable warrant which is against the mandate of law rendered by this Court in the case of ‘Rustam Alam and Others v. The State of Jharkhand’Accordingly the part of impugned order dated 14.03.2019 and dated 23.09.2019 with regard to issuance of non bailable warrant and issuance of process under section 82 Cr.PC will not survive. Accordingly the part of impugned order dated 14.03.2019 so far issuance of non bailable warrant and dated 23.09.2019 so far as issuance of process under section 82 Cr.PC is concerned are quashed. 10. The matter is remitted back to the court below to proceed further in the light of the judgment rendered by Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin”and the direction issued by this Court in case of ‘Rustam Alam and Others v. The State of Jharkhand’and in terms of Criminal Procedure Code strictly. To the above extent the criminal miscellaneous petition is allowed and disposed of. SI 

Summary: Owing to the exceedingly dangerous repercussions and implications that follow the issuing of warrants, both bailable or non-bailable, warrants can never be released without sufficient review of evidence and full application of mind. The court must look at whether the criminal charge or FIR was brought with an oblique intent in mind. The judgement was passed by the High Court of Jharkhand in the case of Gouri Devi &amp; Ors. vs The State of Jharkhand &amp; Anr. [Cr. M.P. No. 2719 of 2020] by Single Bench consisting of Hon’ble Justice Sanjay Kumar Dwivedi. The petitioners have questioned the legality and validity of the order passed in SC/ST Case arising out of Barkatha P.S. Case and also for quashing the order, whereby processes under section 82 Cr.PC has been directed to be issued. The Learned counsel for the petitioners submits that by ordering the court below has taken cognizance against the accused persons and by the said order without issuing the summons straightway directed to issue a non-bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non-bailable warrant and passed the order whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed given the said order without following the process of law. The Learned counsel appearing for the respondents fairly submits that the due process has not been followed by the court. The court while relying on the Hon’ble Supreme Court judgment Raghuvansh Dewanchand Bhasin v. the State of Maharashtra, wherein it was held that “before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously.”