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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ilesh J. Vora, J.
Kirtibhai Jivanbhai Bharvad – Applicant
Versus
State Of Gujarat – Respondent
R/Special Criminal Application No. 8272 of 2021 with Criminal MISC. Application (For Interim Relief) No. 1 of 2022
Decided On : 26-09-2022
WARRANT - Criminal Procedure - Section 70, Section 82, Section 83 of Cr.P.C. - The court issued non-bailable warrant of arrest under Section 70 of the Code, which was confirmed by the Revisional Court. The Court also issued a written proclamation as contemplated under Section 82 of the Cr.PC.
Fact of the Case:
A first information report was lodged for various offences under the IPC. The applicant, accused no.7, was evading arrest. The investigating officer filed an application for issuance of non-bailable warrant as contemplated under Section 70 of the Cr.P.C. The CJM issued NBW for arrest of the applicant. The applicant challenged the order before the Sessions Court, which was rejected. The proclamation was also published under Section 82(1) of the Code by the CJM.
Finding of the Court:
The Court found that the applicant was evading arrest and that the issuance of the warrant was essential for further proceedings under Sections 82 and 83 of the Cr.P.C. The Court considered the allegations made in the FIR and the efforts made to secure the presence of the applicant for investigation.
Issues: The main issue was whether the court was justified in issuing the non-bailable warrant and passing the order under Section 82(1) of the Cr.P.C.
Ratio Decidendi: The Court held that the warrant under Section 70 and the order under Section 82(1) were justified based on the allegations in the FIR and the efforts made to secure the presence of the applicant for investigation.
Final Decision: The petition was dismissed, and the court found no infirmity in the impugned orders passed by the courts below, which did not call for any interference.
JUDGMENT :
1. By this application under Article 226 read with Article 227 of the Constitution of India and Section 482 of Criminal Procedure Code, 1973, the applicant-original accused is praying for setting aside the impugned order dated 24.02.2021 passed by Chief Judicial Magistrate, Gandhinagar, whereby, the Court has issued non-bailable warrant of arrest under Section 70 of the Code, which has been confirmed by the Revisional Court vide its order dated 03.08.2021 passed by Additional Sessions Judge, Gandhinagar in Criminal Revision Application No.33 of 2021.
2. On 04.12.2020, a first information report came to be lodged with Kalol Police Station, District: Gandhinagar for the offence punishable under Sections 380, 406, 409, 477, 384, 457, 120B, 201 and 114 of the IPC. The applicant herein is one of the accused persons (accused no.7) named in the FIR. Since lodgment of the FIR, the applicant being accused of non-bailable offence, evading his arrest. It is case of the prosecution that, after extensive search and efforts made by the investigating officer, the applicant-accused was not traceable at his residential address and investigating officer could not secure the presence of the applicant-accused. In such circumstances, P.I., LCB, Gandhinagar filed an application for issuance of non-bailable warrant as contemplated under Section 70 of the Cr.P.C. with a specific note that it is necessary for initiation of the proceedings declaring the accused as proclaimed offender as contemplated under Section 82 and 83 of the Cr.P.C. The CJM, Gandhinagar vide its order dated 24.02.2021, issued nonbailable warrant as prayed for. The applicant-accused, being aggrieved with the order, challenged it before the Sessions Court, Gandhinagar by filing Criminal Revision Application No.33 of 2021 and the same came to be rejected vide its order dated 03.08.2021. The proclamation is also published under Section 82(1) of the Code by the CJM, Gandhinagar vide its order dated 09.06.2021.
3. In the aforesaid facts, the present petition is filed under Article 226 and 227 read with Section 482 of Cr.P.C., invoking extra ordinary jurisdiction of this Court and has prayed the following reliefs:
(AA) be pleased to quash and set aside order dated 09.06.2021 passed by learned CJM, Gandhinagar in Criminal Case No.1025 of 2021 below Exh.21;
(B) Pending the admission hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay further execution, implementation and operation of order dated 03.08.2021 passed by learned Additional Sessions Judge, Gandhinagar in Criminal Revision Application No.33 of 2021, as also order dated 24.02.2021 passed by the learned Chief Judicial Magistrate Court, Gandhinagar in Criminal Case No.1025 of 2021; (BB) Pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay the execution, implementation and operation of the order dated 09.06.2021 passed by learned CJM, Gandhinagar in Criminal Case No.1025 of 2021 below Exh.21;
(C) Be pleased to pass such other and further orders which may deem fit in the interest of justice in favour of the petitioners.”
4. This Court has heard Mr. B.B. Naik learned Senior Counsel assisted by Mr. D.R. Dave, learned counsel appearing for and on behalf of the applicant namely Kiritbhai Rabari, Mr. Anshin Desai, learned Senior Counsel assisted by Mr. Parth Contractor, lear
Issuance of Non-bailable warrant – Not justifie – Accuse not given requisite desired answers to Investigating Agency, can be no ground per se for issuance of non-bailable warrants
The competence of the Magistrate to issue warrants of arrest and the importance of securing the presence of the accused for interrogation during the course of investigation.
(1) In bailable offence, right of accused to get bail is absolute and indefeasible right and courts have no discretion in granting bail.(2) Criminal Courts should consider bail applications particula....
Non-bailable warrants cannot be issued routinely; courts must provide adequate reasoning and evidence to justify such action, ensuring individual liberty is not curtailed without necessity.
The judgment established that the issuance of a non-bailable warrant should follow proper procedure and judicial guidelines, including the recording of satisfaction by the court.
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