2018 (7) TMI 2116 - HC - Indian Laws

Issuance of non-bailable warrant - offence punishable under Sections 120B, 420, 467 and 468 of the IPC - HELD THAT - Bearing in mind the statutory provision contained in sub-section (2) of Section 319 of the CrPC and judged by the principles of law laid down by Their Lordships of the Supreme Court in STATE OF U.P. VERSUS POOSU AND ANOTHER 1976 (4) TMI 223 - SUPREME COURT , it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable warrant of arrest should be issued to secure the presence of the accused person. In the instant case, the fact remains that summon and bailable warrant issued to the applicant remained unserved and thereafter, straightway, non-bailable warrant could not have been issued to the applicant in light of the principles of law enunciated by the Supreme Court in the aforesaid decisions - it is a fit case in which the applicant should be granted anticipatory bail. Bail application allowed.

Summary

Issues:
1. Application for anticipatory bail under Section 438 of the CrPC due to fear of arrest in connection with a criminal complaint.
2. Issuance of non-bailable warrant against the applicant without serving summons and bailable warrant.

Analysis:
1. The applicant filed an application seeking anticipatory bail under Section 438 of the CrPC due to the fear of arrest in connection with a criminal complaint case pending against him. The complaint alleged offences under Sections 120B, 420, 467, and 468 of the IPC. The applicant argued that the issuance of a warrant of arrest directly, without serving summons and bailable warrant, was contrary to established legal principles. The applicant's counsel cited the need for adherence to due process before resorting to a non-bailable warrant.

2. The court considered legal precedents set by the Supreme Court in various cases to determine the appropriate issuance of non-bailable warrants. Referring to the case of Inder Mohan Goswami v. State of Uttaranchal, the court highlighted the need for caution in issuing non-bailable warrants, emphasizing the importance of personal liberty. Additionally, the court cited the case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra, which stressed the need for a balanced approach between law enforcement requirements and protecting citizens from arbitrary actions.

3. The court further referred to the case of Vikas v. State of Rajasthan, which emphasized the importance of issuing summons or bailable warrants before resorting to non-bailable warrants to secure the attendance of the accused. The court reiterated the need for judicious exercise of power by the trial court in issuing warrants, considering the principles laid down by the Supreme Court. In the present case, the court found that the non-bailable warrant issued against the applicant was premature, as the summon and bailable warrant had remained unserved.

4. Consequently, the court held that the applicant should be granted anticipatory bail, considering the improper issuance of the non-bailable warrant. The court directed that in the event of the applicant's arrest, he should be released on bail upon executing a personal bond and complying with specified conditions. The court emphasized the importance of balancing personal liberty with societal interests and ensuring a fair trial process.

5. In conclusion, the court's judgment underscored the need for a cautious and balanced approach in issuing warrants, particularly non-bailable warrants, to protect individual rights and uphold the principles of justice and due process.