Court must record reasons for issuing non-bailable warrant; summons should be issued first unless evidence shows the accused is absconding or non-compliant.

JUDGMENT :

Sashikanta Mishra, J.

1. The petitioner, in the present application under Section 482 of Cr.P.C. seeks to challenge the order dated 16.01.2020 passed by learned Special CJM, (CBI), Bhubaneswar in S.P.E. No. 2 of 2020 whereby non bailable warrant was issued against him and the co-accused persons.

2. The facts of the case, relevant only to decide the present application is that the petitioner along with the co-accused persons is facing trial in the aforementioned case for alleged commission of offences under Sections 120 -B/420/467/468/471 of IPC . The said case was registered on the basis of source information regarding the involvement of the accused persons in the alleged offences. Upon completion of investigation, charge sheet has been submitted keeping the investigation open under Section 173 (8) of Cr.P.C. It is significant to note that the petitioner was not arrested during investigation. By order dated 16.01.2020, the Court below directly issued NBW against the petitioner.

3. Heard Mr. Ashutosh Mishra, learned counsel for the petitioner and Mr. Sarthak Nayak, learned counsel for the CBI.

4. Mr. Mishra forcibly argues that the court below committed patent illegality in directly issuing NBW again the petitioner despite the fact that he had not been arrested during investigation. Mr. Mishra has cited the decision of the Apex Court in the case of Aman Preet Singh vs. Republic of India (CBI) through the Director (Criminal Appeal No.929 of 2021, decided on 02.09.2021) to submit that the court below should have issued bailable warrant at the first instance.

5. Mr. Sarthak Nayak, on the other hand submits that the court is empowered to either issue non-bailable or bailable warrant depending on the facts of the case. In the instant case, taking note of the seriousness of the offences involved, the court below thought it fit to issue NBW. According to Mr. Nayak there is nothing wrong in such order.

6. There is no dispute that while taking cognizance of the offences, the Magistrate can issue non-bailable warrant of arrest as contemplated under Section 87 of Cr. PC. But in such case, the court below is required to record its reason. In the case of Court on its own Motion vs. Central Bureau of Investigation (2004) 72 DRJ 629 the Delhi High Court held as follows.:-

“26. xxx xxx xxx xxx ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87 , Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

xxx xxx xxx xxx”

7. The above view was approved by the Apex Court in the case of Aman Preet Singh (supra) to the effect that the court is required to invariably issue a process of summons and not warrant of arrest. Further in case, he seeks to exercise the discretion of issuing warrant of arrest, he is required to record the reason as contemplated under Section 87 of Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. The Apex Court also held that in the context of an accused in a non-bailable offence whose custody was not required during the pe