1. Apprehending arrest in connection with Criminal Complaint Case No. 6398/2017 pending in the Court of Judicial Magistrate First Class, Durg, registered at Police Station Khursipar, Bhilai, Distt. Durg, for the offence punishable under Sections 120B, 420, 467 and 468 of the IPC, the applicant has filed this application under Section 438 of the CrPC for grant of anticipatory bail.

2. In a criminal complaint filed by non-applicant No.2 herein, offence under Sections 120B, 420, 467 and 468 of the IPC was registered at Police Station Khursipar, Bhilai, Distt. Durg, against the applicant in which warrant of arrest has been issued against him.

3. Learned Senior Counsel appearing for the applicant submits that offence has been registered against the applicant on 22-7-2017 and summons were issued which received un-served and thereafter, bailable warrant was issued which also received un-served and straightway, warrant of arrest has been issued which is contrary to the well settled law in this regard. Only in case of service of summons and bailable warrant, if accused remains absconding, then only non-bailable warrant would be issued.

4. Learned State counsel and learned counsel for the complainant/non-applicant No.2 would oppose the application.

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

6. Way back, in the year 1976, Their Lordships of the Supreme Court in a Constitution Bench decision in the matter 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. Capt. Jagjit Singh (AIR 1962-SC 253).”

7. In the matter of Inder Mohan Goswami and another v. State of Uttaranchal and others 2007 (12) SCC 1. Their Lordships of the Supreme Court have held in unmistakable terms that issuance of non-bailable warrants actually interferes with personal liberty and therefore courts have to be extremely careful before issuing non-bailable warrant and laid down the principles, when non-bailable warrants should be issued which state as under :

“Non-bailable warrants should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

it is reasonable to believe that the person will not voluntarily appear in court;

the police authorities are unable to find the person to serve him with a summon;

it is considered that the person could harm someone if not placed into custody immediately.”

In the later part of judgment, Their Lordships cautioned the criminal court to refrain from issuing non-bailable warrant of arrest at first instance by directing as under :

“In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding 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.”

Their Lordships while concluding, emphasized the need of striking proper balance between individual personal liberty and societal interest/interest of public before issuing warrant by making following pertinent observation :

“The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both