1. The short, but important question falls for determination in this petition is whether learned trial magistrate is justified in straightway issuing non-bailable warrant for securing the presence of the petitioner/accused after granting application under Section 319(1) of Cr.P.C. without making an attempt to secure his presence first either by issuing summon or bailable warrant?

2. The State of Chhattisgarh through Station House Officer, Maudahapara, Raipur, on 06.11.2013 filed chargesheet against Farman Malik for commission of offence under Section 420/34 and 354A of the IPC. In said case, charges were framed against the said accused person on 02.01.2014 and thereafter on 18.02.2014 the complainant Yamini Baghel was examined and simultaneously the prosecution filed an application under Section 319 of Cr.P.C. for arraigning the present petitioner as co-accused in said criminal case. On 05.03.2014, after considering the said application, the trial court allowed the same and directed issuance of non-bailable warrant of arrest against the present petitioner. Thereafter, the petitioner has filed this petition challenging the said impugned order dated 05.03.2014.

3. Smt. Fouzia Mirza, learned counsel appearing for the petitioner would submit that the trial magistrate is wholly unjustified in straightway issuing non-bailable warrant of arrest as no attempt was made to secure his presence by way of summon/bailable warrant, and as such, it is a violative of his personal liberty guaranteed under Article 21 of the Constitution of India, and therefore, order issuing non-bailable warrant be set aside.

4. Shri Chitranjay Patel, learned counsel appearing for the respondent/State would submit that looking to the nature and gravity of offence as the petitioner is alleged to have found involved in commission of offence under Sections 420 and 354A of IPC, therefore, issuance of non-bailable warrant of arrest against the present petitioner is well merited and no interference is called upon in exercise of inherent jurisdiction under Section 482 of Cr.P.C.

5. I have heard the counsel appearing for the parties and perused the material available on record.

6. To appreciate the point involved, it will be useful to have a look at the provisions contained in Section 319 of Cr.P.C. which reads as under :

“319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.”

A close and careful reading of sub-section (2) of Section 319 of Cr.P.C. would show, that criminal court granting an application under sub Section (1) of Section 319 of Cr.P.C. has, a discretion to best secure the attendance of accused to be arraigned, if he is not already attending the court, either by issuance of summon or by issuance of warrant that may be either bailable or nonbailable, and it is a matter which vests entirely on discretion of that court to be exercised judiciously.

7. Way back, in the year 1976, their Lordships of Supreme Court in constitution Bench decision in case of State of U.P. v. Poosu and Another, 1976 (3) SCC 1 had an occasion to consider the question of securing the attendance of accused person while granting special leave against an order of acquittal by holding as under:

“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, tampering with evidence, larger interest of the public and State. (See The State v. Ca