Hon'ble SHARMA, J.—Heard learned counsel for the parties.

2. This revision petition has been filed against the order dated 27th January, 2009 passed by the Civil Judge (Jr. Div.) & Judicial Magistrate, 1stClass, Mangrol, District Baran, in Criminal Case No. 34/2009, arising out of FIR No. 137/2008 and Final Report No. 48/2008, whereby the learned Magistrate took cognizance against the accused-petitioners for the offence under Section 420, 467, 468, 471, 120-B IPC and issued non-bailable warrant.

3. In short, the brief facts of the case are that the complainant-respondent No.2 (Mohammad Siddiqui) submitted a complaint before the trial Court against the petitioners for the offence under Section 420, 467, 468, 471, 120-B IPC. The trial Court sent the complaint under Section 156(3) of the Criminal Procedure Code to the Police Station, Mangrol, District Baran for registering the First Information Report and for investigation. The Police Station, Mangrol registered the F.I.R. No.137/2008 for the offence under Sections 420, 467, 468, 471, 120-B IPC. After investigation, the police submitted the final report.

4. The complainant-respondent No. 2 filed the protest petition. Thereafter the statement under Section 200 and Cr.P.C. were recorded. Upon that, the trial Court took cognizance against the petitioners for the offence under Sections 420, 467, 468, 471 and 120-B IPC vide his order dated 27.1.2009. Against the said order, this revision petition has been preferred.

5. The learned counsel for the petitioners Mr. Mahesh Gupta submits that no prima-facie case is made out against the petitioners and the trial Court has committed a serious error while not considering the evidence collected by the investigation authorities, who submitted a final report. In the present matter, civil litigation is pending between the parties. The case of the petitioners comes under the provisions of the Transfer of Property Act instead of Indian Penal Code and the trial Court has not considered the ingredient of Section 420, 467, 468, 471 and 120-B IPC and the order of the trial Court taking cognizance is without any basis and same should be quashed. In the alternate, he has requested to this Court that if this Court is not inclined to quash the order of cognizance dated 27.1.2009, then the non-bailable warrant, which have bee issued by the trial Court, be converted into bailable warrant in the light of judgment delivered by the Apex Court in the case of Inder Mohan Goswami & Another vs. State of Uttaranchal & Others- AIR 2008 SC 251.

"(E) Criminal Procedure Code (2 of 1974), S. 73- Constitution of India, Art. 21 -Non-bailable warrant - Issuance-Deprived person of his liberty - Must be issued with due care - Circumstances in which non bailable warrant should be issued - Innumerated.

When non-bailable warrants should be issued.

52. Non-bailable warrant 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;

or

the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.

53. 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.

54. 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 seems to be avoiding the summons, the Cour

Click Here to Read the rest of this document