The central legal point established in the judgment is the requirement for proper scrutiny of facts and complete application of mind before issuing non-bailable warrant, as well as the importance of recording reasons for arrest and the discretion provided by relevant provisions of the Code of Criminal Procedure.

JUDGMENT :

S.K. Mishra, J.

1. This is an application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' for brevity. The petitioner, being the accused in G.R. Case No. 227 of 2010 of the court of learned JMFC (P), Kujang, arising out of Kujang P.S. Case No. 88 of 2010 initiated for the alleged commission of offence under Sections 294, 323, 354, 506 of the IPC read with Section 3(1)(x)(xi) of the SC and ST (PA) Act has challenged the orders dated 18.09.2010 and 17.01.2011. The Investigating Officer prayed for issuance of non-bailable warrant against the accused-petitioner. The learned Magistrate perused the case records. He recorded that name of the accused finds place in the case diary, statement recorded under Section 161 of the Code as well as in the FIR. He further recorded that the accused is not apprehended in spite of several attempts. Hence, issued non-bailable warrant of arrested against the present petitioner.

2. The Hon'ble Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 has held that civilized countries have recognised that liberty is the most precious of all human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of the Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. The Hon'ble Apex Court held that the issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means infringement of precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrant. The Hon'ble Apex Court further held that non-bailable warrant should be issued to bring a person to court when summon or bailable warrant would be unlikely to have the desired result. The examples are that (i) it is reasonable to believe that the person will not voluntarily appear in court; or (ii) the police officer is unable to find the person to serve with summon; or (iii) it is considered that the person could harm someone if not taken to custody immediately.

The Hon'ble Supreme Court in the aforesaid case further held that 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 warrant should be preferred. The warrant either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to extremely serious consequences and ramifications which ensue on issuance of warrant. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. It further held that the power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrant. There cannot be any straitjacket formula for issuance of warrant but as a general rule, unless an accused is charged with the commission of offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrant should be avoided.

3. However, in this case, such a procedure is not adopted. In the case of Sri Dipti Ranjan Parida @ Dilu v. State of Orissa, 2008 (II) OLR 148 this Court has the occasion to examine the requirements of the law before issuing warrant before submission of charge-sheet. This Court took the view that Section 73 of the Code provides that the learned Magistrate with a discretion to issue warrant on certain conditions. It is appropriate to take note of