The paramount importance of personal liberty and the need for courts to exercise discretion judiciously in issuing non-bailable warrants.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Prabhat Kumar Sinha, the learned counsel for the petitioners and Mrs. Niki Sinha, the learned counsel for the State.

2. This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The petitioners have questioned the legality and validity of the order dated 14.03.2019 passed in SC/ST Case No. 64 of 2019 arising out of Barkatha P.S. Case No. 64 of 2015 corresponding to G.R. No. 2735 of 2013 and also for quashing the order dated 23.09.2019 whereby processes under section 82 Cr.P.C. has been directed to be issued.

4. Mr. Prabhat Kumar Sinha, the learned counsel appearing for the petitioners submits that by order dated 14.03.2019 the court below has taken cognizance against the accused persons and by the said order without issuing the summons straight way directed to issue non-bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non-bailable warrant and passed the order dated 23.09.2019 whereby process under section 82 Cr.P.C. has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed in view of the said order without following the process of law. He submits that the case of the petitioners is covered in the light of the judgment of Hon’ble Supreme Court in case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra, (2012) 9 SCC 791. Paragraph nos. 12 and 13 of the said judgment are quoted herein-below:

“12. In Inder Mohan Goswami vs. 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: (SCC pp. 17-18, Paras 53-55)

“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:

(i) it is reasonable to believe that the person will not voluntarily appear in court.

(ii) the police authorities are unable to find the person to serve him with a summon.

(iii) 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.”

13. We deferentially concur with these directions, and emphasise that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 2