The court upheld the issuance of a non-bailable warrant based on the petitioner's evasion of arrest and non-cooperation with the investigation, as well as the gravity of the offense.

JUDGMENT :

Ramesh Sinha, J.

1. This petition seeks issuance of a writ in the nature of Certiorari quashing the impugned order dated 15.10.2022 passed by the Special Judge (POCSO Court), Allahabad, whereby non-bailable warrant has been issued against the petitioner in F.I.R. No. 0136 of 2022, under Sections 323, 376, 504, 506 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Phaphamau, District Allahabad.

2. Heard Ms. Archi Piyush, learned Counsel for the petitioner, Shri J.K. Upadhyaya, learned Additional Government Advocate for the State/respondents no. 1 to 3 and perused the impugned F.I.R. as well as material brought on record.

3. It appears that the proceedings were commenced pursuant to an FIR dated 18.05.2022, registered as FIR No.0136 of 2022, under Sections 354 (k), 323, 504, 506 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Phaphamau, District Allahabad, against the petitioner, whereupon the case was investigated. The aforesaid F.I.R. was challenged by the petitioner by filing Criminal Misc. Writ Petition No. 6443 of 2022 before this Court, which was dismissed as withdrawn by means of the order dated 31.05.2022. Thereafter, the petitioner has filed anticipatory bail application, bearing No. 7475 of 2022, which was rejected by the learned Single Judge vide order dated 31.08.2022. During the pendency of the investigation, the Investigating Officer of the case has filed an application before the Special Judge (POCSO Court), Allahabad, stating that the petitioner is the wanted accused in F.I.R. No. 0136 of 2022 but in spite of his best efforts, he could not secure the arrest of petitioner and the petitioner is absconding and there is an apprehension that the petitioner could commit heinous crime, therefore, non-bailable warrant be issued against the petitioner. The Special Judge (POCSO Court), Allahabad, took cognizance of the aforesaid application of the Investigating Officer and upon examining the assertions of the application as well as the case diary, the Special Judge (POCSO Court) issued non-bailable warrant against the petitioner by means of the order dated 15.10.2022. It is at this stage that the present writ petition under Article 226 of the writ petition has been filed by the petitioner, seeking quashing of the aforesaid order dated 15.10.2022 passed by the Special Judge (POCSO Court), Allahabad.

4. Learned counsel for the petitioner has submitted that the Special Judge (POCSO Court), Allahabad has passed the impugned order on the basis of the application moved by the Investigating Officer that the petitioner is not co-operating with the investigation. She argued that the investigation is still continuing and no report has been submitted under Section 173 (2) Cr.P.C. She also argued that informant Shri Hari Shanker Tiwari and the petitioner are the residents of Nai Basti Rangpura, Banaras Road, Phaphamau, Prayagraj and they have amicably settled the dispute by means of compromise deed dated 16.01.2023, a copy of which has been annexed as Annexure no.6 to the writ petition. Therefore, issuance of nonbailable warrant against the petitioner during pendency of invesigation is liable to be quashed. In support of her submission, she has relied upon the judgment of the Apex Court in State through CBI Vs. Dawood Ibrahim Kaskar and others : (2000) 10 SCC 438, wherein the Apex Court has held that the power of issuance of non-bailable warrant can be exercised by the learned Magistrate for appearance of accused before the Court and not before the police in aid of investigation.

5. Learned Additional Government Advocate, on the other hand, has contended that the impugned order has been passed by the Special Judge (POCSO Court), Allahabad, issuing non-bailable warrant against the petitioner, after taking into account the fact that though the Investigating Officer has raided the house of the petitioner, his relative and other plac