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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mohammad Rafiq, Prakash Gupta, JJ.
Manohar Lal Saini and Others - Petitioners
Vs.
The State of Rajasthan - Respondent
D.B. Criminal Revision Petition No.382/2014
Decided on : 02.12.2015
Constitution of India, 1950 - Article 21 - Code of Criminal procedure , 1973 - Section 204 , 193 , 319 , 437 and 439 – Indian Penal Code, Sections 143, 173(8) ,323, 341 and 302 - Prima facie case - Charge – sheet - Bailable warrant - Complainant filed under Section of Code of Criminal procedure vide which court has taken cognizance against them - While charge - sheet was filed by police against other accused for offence Investigating Officer kept investigation pending against three petitioners undeR Code - Learned trial court however taking into consideration statement of prosecution witnesses found that prima facie case was made out to join them as co- accused - Apprehending that in event of their appearance on before trial court they may be sent behind bars, petitioners have approached this court for a direction to trial court not to send them to jail when they appear before it after execution of bailable warrants by police and on furnishing bail bonds and sureties - Honble Chief Justice by order dated required Deputy Registrar (Judicial) To lay matter again before him with overall background if any necessitating judicial scrutiny by a Larger Bench as seemed to be suggested - Deputy Registrar (Judicial) prepared a detailed note and submitted it before Honble Chief Justice on whereupon matter was ordered to be laid before Division Bench – Held, Accused acquires some semblance of right to be heard if order accepting such final report is challenged any further which cannot be annulled without providing opportunity of hearing to him - Right of an accused who has been summoned by bailable warrant if not at the same level can on that analogy at least be cited to support contention that he has a right to be heard before he is ordered to be sent behind the bars - Liberty of a citizen is of paramount importance and constitutional guarantee which cannot be incised - Doing so would also frustrate law so developed by catena of judgments delivered by Supreme Court to zealously safeguard the personal liberty of citizens of the country and to see that they are not subjected to unnecessary harassment - When Court say that every administrative action should be informed of fair play must also observe that the courts should also follow same principle in their functioning where reasonable amount of certainty as also consistency should always be exhibited in their functioning - If Court has taken cognizance against a person at the stage of Section 319 of the Code, summoning the accused by bailable warrant would be analogous to grant of bail - If accused has appeared not only on first date but also continues to appear on all subsequent dates in conformity with bail bond furnished by him and surety executed in support thereof court ought to refrain from sending him to jail subsequently without there being any supervening circumstance - If court at later stage decides to send him to jail it must conform to certain judicial norms – Order accordingly.
Based on the provided legal document, the key points regarding the issue of whether an accused summoned by bailable warrant can be sent to jail or should remain on bail until the conclusion of the trial are as follows:
The issuance of a bailable warrant primarily aims to secure the presence and attendance of the accused before the court. Once the accused appears in response to the bailable warrant and continues to attend all subsequent proceedings, the court generally should not send him to jail without a valid supervening reason (!) (!) .
The act of summoning an accused by a bailable warrant in a non-bailable offence is a conscious and deliberate decision by the court, indicating an intention to secure his appearance without necessarily implying that bail has been granted or that the accused is in custody (!) (!) .
When an accused appears before the court in response to a bailable warrant and has furnished bail bonds and sureties, he is considered to be in symbolic custody and has a right to continue on bail until the trial concludes, unless there are specific reasons such as violation of bail conditions, absconding, or other supervening circumstances that justify sending him to jail (!) (!) .
The court must exercise its discretion judiciously and with due application of mind when deciding to send an accused to jail after response to a bailable warrant. Such action should be based on valid reasons, including non-compliance with bail conditions or other conduct that undermines the court's authority or the integrity of the trial process (!) (!) .
The legal framework recognizes that once an accused appears and continues to attend court proceedings, the issuance of a bailable warrant does not automatically translate into a grant of bail. The accused has the right to apply for regular bail, and the court should consider such applications on their merits, respecting the principles of fairness and personal liberty (!) (!) .
Any decision to send an accused to jail at a later stage, after initial appearance on a bailable warrant, must be made with proper notice, an opportunity to be heard, and based on concrete, justifiable reasons. Arbitrary or mechanical actions are not permissible, and such actions would violate the constitutional guarantee of personal liberty (!) (!) .
The procedural provisions and judicial principles emphasize that the liberty of the individual is paramount, and courts should avoid unnecessary detention. The decision to incarcerate an accused summoned by a bailable warrant should be taken only after careful consideration of all relevant circumstances, ensuring adherence to constitutional rights and due process (!) (!) .
In summary, the legal position strongly favors allowing an accused summoned by a bailable warrant to remain on bail until the trial's conclusion, provided he continues to comply with court directions and does not engage in conduct warranting detention. Any deviation from this principle requires clear, valid reasons and adherence to procedural fairness.
Upon a reference made by a Single Bench of this Court, instant matter has been placed before the Division Bench for answering the referred question. Reference arises out of revision petition, which has been preferred by three petitioners, namely, Manohar Lal Saini, Dinesh Kumar Saini and Umesh Kumar Saini, challenging the order dated 06.03.2014 passed by the court of Additional District and Sessions Judge No.3, Sikar, passed on the application of the complainant filed under Section 319 of the Code of Criminal procedure (for short, 'the Code'), vide which the court has taken cognizance against them. While the charge- sheet was filed by the police against other accused for offence under Sections 143, 323, 341 and 302 IPC, the Investigating Officer kept investigation pending against three petitioners under Section 173(8) of the Code. Learned trial court, however, taking into consideration statement of prosecution witnesses, found that prima facie case was made out to join them as co- accused. It therefore took cognizance against them and summoned them by issue of bailable warrant in the sum of Rs.20,000/- each. Apprehending that in the event of their appearance on 09.04.2014 before the trial court, they may be sent behind the bars, the petitioners have approached this court for a direction to the trial court not to send them to jail when they appear before it after execution of the bailable warrants by the police and on furnishing bail bonds and sureties, and further to continue their bail till conclusion of the trial.
2. When the matter was listed before the Single Bench on 26.03.2014, learned Single Judge, on the request of learned counsel for petitioner, directed the Registry to place the same before Hon'ble the Chief Justice for appropriate orders. The Hon'ble Chief Justice by order dated 04.04.2014 required the Deputy Registrar (Judicial) “to lay the matter again before him with overall background, if any, necessitating judicial scrutiny by a Larger Bench, as seemed to be suggested.”. The Deputy Registrar (Judicial) prepared a detailed note and submitted it before Hon'ble the Chief Justice on 18.04.2014, whereupon the matter was ordered to be laid before the Division Bench. The Division Bench, faced with the situation that no question was framed by the Single Bench, to be answered by the Larger Bench, by order dated 28.05.2014, again directed the Registry to place the revision petition before the learned Single Judge, with request to frame the question, which he proposes to be answered by the Larger Bench. It was thereafter that learned Single Judge, by order dated 16.10.2014, formulated the question in hindi for reference to the Larger Bench, which, when translated into english, means whether bail of an accused summoned by bailable warrant, upon his appearance before the court, can be cancelled or he should be allowed to continue on such bail till conclusion of the trial?
3. We have heard learned counsel for the parties. We have also heard learned counsel, who have appeared in response to general notice issued to the Members of the Bar, requesting them to address the court on the aforementioned question.
4. We having taken note of the factual context in which learned counsel have addressed the court, deem it appropriate to slightly recast the question, though substantially retaining its purport, for our answer, in the following terms:-
“Whether an accused of non-bailable offence, summoned through bailable warrant by the trial court, invoking its power under Section 319 of the Code, can, in the event of his appearance before the court, be sent behind the bars or should be allowed to remain on bail till conclusion of the trial?”
5. Shri A.K. Gupta, learned Senior Counsel appearing for petitioners, has argued that Section 204 of Chapter XVI of the Code is the only provision in the Code, which provides for issue of process, and Section 205, the provision immediately figuring thereafter, empowers the Magistrate, who issues
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