IMPORTANT POINT
The court emphasized the importance of personal liberty and cautioned against issuing non-bailable warrants unless absolutely necessary, especially when a negative final report has been submitted.

ORDER :

1. By this criminal miscellaneous petition, the petitioners have challenged the order dated 06.10.2023, passed by learned Chief Judicial Magistrate, Dholpur, whereby he took cognizance against the petitioners for an offence under Section 302/34 IPC and summoned them through warrant of arrest in Criminal Compliant (Protest) No. 2605/2023 arising out of FIR No. 315/2021 registered at Police Station Kotwali, District Dholpur for an offence under Section 302/34 IPC.

2. Learned counsel for the petitioners submits that he is not pressing this petition to the extent of cognizance taken against the petitioners and he would be satisfied if the petitioners are summoned through bailable warrants instead of non-bailable warrants/arrest warrant.

3. Learned counsel submits that the petitioners may be allowed to raise all the objections, taken in this petition, at the stage of charge. He further submits that at the first instance, the petitioners should not be summoned through warrant of arrest, particularly when, negative final report has been submitted by the police.

4. Learned counsel has placed reliance on the judgment of Apex Court in the case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr. (2012) 9 SCC 791, wherein in Para No. 12, the Apex Court has held as under:

“12. In Inder Mohan Goswami v. State of Uttaranchal, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the Courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the Court should bear in mind while issuing non-bailable warrant, it was observed:

“53. 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. This could be when:

it is reasonable to believe that the person will not voluntarily appear in cour.

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.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. 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 court's 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.”

5. Learned counsel further submits that in this matter, after thorough investigation, police submitted negative final report, as no case was found against the petitioners and according to the postmortem report, cause of death was Asphyxia due to automation hanging.

6. In view of the above, the present criminal miscellaneous petition is dismissed as not pressed to the extent of cognizance order dated 06.10.2023 with liberty to raise all the objections before learned trial Court at the stage of charge.

7. However, considering the fact that negative final report has been submitted by the investigating agency and the petitioners have been summoned through warrant of arrest, I direct the petitioners to appear before learned Magistrate on or before 03.05.