2008 (2) Crimes 718 (Del.)
DELHI HIGH COURT
Sanjay Kishan Kaul, J.
Mani Shandly and Anr.—Petitioners
versus
State and Anr.—Respondents
Crl. M.C. No. 1157 of 2008
Decided on 11.4.2008

IMPORTANT POINT
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.

Headnote:Criminal Procedure Code, 1973—Sections 87, 89—Issue of arrest warrants against accused—Delhi High Court Rules—Rule 3 of Chapter 1 of Part C(i) in Part III—Warrants should not be issued unless absolutely necessary—Guidelines laid in Inder Mohan Goswami case by Supreme Court when non-bailable warrants should be issued—Arrest warrants were issued against petitioners when on a date of hearing during trial in a bailable offence case petitioners were not present before Court—Non-appearance was sought to be explained for reason of wrong noting of the date—Magistrate did not accept the explanation and imposed penalty of bail bond amount—Facts and circumstances revealed that approach was perverse based on conjectures—Power was not exercised judiciously and impugned order suffered from total lack of judicious approach to the matter in question—Impugned order was liable to be set aside.

       Held: The learned MM seems to have proceeded with the sole object of somehow dismissing the application of the petitioners and trying to smell rats when there are none. The petitioners were appearing in person and were present on all dates. They have stated in the application that the date had been wrongly noted. The counsel was out-of-station. To draw the conclusion that the counsel must have informed the petitioners about his going out-of-station and thus must have told them the correct date and thus they must have known the correct date is on the basis of surmises and conjecture on which the learned MM seems to have proceeded while considering the application seeking recall of the NBWs. Once again, on the aspect of the counsel representing accused No. 1 being present and seeking exemption of his appearance and the factum that the counsel having some linkage to the other counsel who was out-of-station and was appearing for accused No. 1 and had also appeared for accused Nos. 2 & 3 on earlier dates though without Power of Attorney is not of much significance. There, in fact, have been no previous occasions noted in the impugned order when the petitioners have not remained present in Court, it has also been pointed out that even the complainant’s witnesses were not present on the relevant date and thus there has been no prejudice to the trial. The impugned order is not only unsustainable but borders on perversity.

       It has been necessary to pen down a more detailed judgment in this case because of a number of such cases coming to the notice of this Court of indiscriminate issuance of NBWs. The accused must remain present for purposes of early conclusion of trial. An accused who seeks to defeat the course of justice by repeatedly absenting himself must be dealt with firmly. I, however, consider that non-presence should not result in issuance of NBWs straightaway when issuance of bailable warrants could secure the presence of the petitioners. The petitioners were appearing on earlier dates and it is not as if the issuance of bailable warrants could not have ensured their presence on the subsequent dates. The trial Court must take into consideration the important aspects such as the past conduct of the accused, the nature of offence or the failure to appear in pursuance to the order of summoning. The present case is one of bailable offences and the petitioners appeared in pursuance to the summons issued and continued to appear but were absent on one date. Not only that they even moved an application for recall of the non-bailable warrants, which has been dismissed by the impugned order. The trial Court at the stage of issuance of NBWs at the initial stage did not record any reasons for taking this extreme step and thus the order was in violation of the direction (ii) contained in the judgment of this Court in Court on its own motion v. CBI (supra). The caution given in the Rule 3 aforesaid has also been thrown to the winds by the trial Court, it is clearly provided that when issuance of summons or bailable warrants would suffice, there is no necessity to issue NBWs as it involves interference with personal liberties of persons.

       The present case was not one where the trial Court had reason to believe that the petitioners would not voluntarily appear in court or that they could not be located by the police authorities or would harm somebody if not taken into custody as per the parameters laid down in Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., case (supra). The power has, thus, not been exercised judiciously and the impugned order suffers from total lack of judicious approach to the matter in question. The caution extended in Naresh Kumar v. State case (supra) has once again been thrown to the winds. It needs to be emphasised that the trial Court in such cases must endeavour to secure presence and issue bailable warrants in case of such one time default before resorting to the process of issuance of non-bailable warrants. The object of issuance of NBWs is not to satisfy the ego of a judge but to secure the presence of an accused. R.C. Chopra, J. in Geeta Sethi v. State, 91 (2001) DLT 47 has emphasized that courts administering justice on criminal side must always remain alive to the ‘presumption of innocence’ which is the hallmark of criminal jurisprudence and, thus, a natural consequence is that every accused is clothed with the presumption of innocence and entitled to just, fair and decent trial and the aim of the criminal trial is not humiliating or harassing an accused, but to determine the guilty of the innocence. It is in this context further observations were made to the effect that though the presence of an accused in a criminal trial is certainly important and must be insisted upon if the offence is serious and the accused is likely to be punished severely so that in his absence his defence is not jeopardized. The accused involved in summons cases, cases under special Acts and offences where violations are statutory, the offenders should not be treated as hardened criminals.

       In the end I am only reminded of a Judge’s prayer and a portion of it is extracted below:

       “…..Give me grace to hear patiently, to consider diligently, to understand rightly and to decide justly. Grant me due sense of humility, that I may not be misled by my wilfulness, vanity or egotism…..”

       The aforesaid prayer should never be lost sight of by a Judge and humility is a virtue which should not be overpowered by vanity or egotism. The presence of a group of police officers in Court while a Judge presides over the criminal jurisdiction should not give a misconceived heady feeling of a sense of power where a judge seeks obedience losing sight of fundamental principles of constitution rights, criminal jurisprudence and fair play.(Para 17 to 21)

       Result: Petition allowed.