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2024 Supreme(Online)(DEL) 2245
HIGH COURT OF DELHI
Vikas Mahajan, J
LAKSHAY JAISWAL – Appellant
Versus
STATE (NCT OF DELHI) – Respondent
CRL.M.C.3952/2024|BAIL APPLN. 893/2024
For the Appellants/Petitioners: Mr K. K. Manan, Ms Uditi Bali, Mr Karmanya Singh Choudhary, Mr Harshit Jain
For the Respondents: Mr Raj Kumar, APP, Mr Raghvinder Varma, Ms Asha Jyoti, Mr Sarthak Tagra, Mr Sunil K. Mittal, Mr Anshul Mittal
Non-bailable warrants cannot be issued without prior summons; issuance must respect procedural safeguards to avoid abuse of power.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 41A, 82 and 438 - Issuance of non-bailable warrants without prior summons and notice under Section 82 CrPC was found improper, constituting an abuse of criminal process - The order dated 26.04.2024 vacating earlier stay on Section 82 process was set aside as illegal. (Paras 32-33)
(B) Judicial discretion in issuing warrants - Courts must carefully balance individual liberties with societal interests before issuing harsh measures like non-bailable warrants. Summons must precede such drastic measures. (Paras 21-22)
Facts of the case:
The petitioner was accused under Sections 354B, 506 and 509 IPC; non-bailable warrants and Section 82 proclamation process were initiated shortly after FIR registration without prior summons.
Findings of Court:
The issuance of non-bailable warrants and related processes were quashed as they lacked legal foundation and proper procedure.
Issues: The legality of the issuance of non-bailable warrants and compliance with procedural requirements under the CrPC.
Ratio Decidendi: The court established that proper procedural safeguards must be followed before issuing warrants, emphasizing the precedence of summons.
Result: The petition was granted; all subsequent actions based on improper issuance of warrants were quashed.
| Table of Content |
|---|
| 1. petition filed under section 482 crpc. (Para 1 , 2) |
| 2. concerns about issuance of non-bailable warrants. (Para 6 , 8 , 10 , 12 , 18) |
| 3. guidelines for issuing non-bailable warrants. (Para 20 , 21 , 22) |
| 4. quashing illegal proceedings as abuse of process. (Para 28 , 29 , 30) |
| 5. granting anticipatory bail under specified conditions. (Para 33 , 49) |
JUDGMENT
VIKAS MAHAJAN, J.
1. The present petition has been filed under Section 482 CrPC challenging the order dated 26.04.2024 passed by the learned Metropolitan Magistrate, whereby the stay on process under Section 82 CrPC issued against the petitioner/accused vide order dated 14.02.2024, which was granted vide order dated 23.02.2024, was vacated.
2. The brief facts giving rise to the filing of the present petition are as follows:
i) FIR under Section 354(B)/506/509 IPC came to be registered against the present petitioner at the instance of the complainant on 31.01.2024 at PS Model Town.
ii) It is the case of the prosecution that a notice under Section 41A CrPC was given by the investigating officer on 03.02.2024 to the petitioner asking him to appear on 04.02.2024, which was admittedly served on the mother of the petitioner. Similar notice is stated to have been given by the investigating officer to the petitioner on 05.02.2024 asking him to appear on 06.02.2024 before the Investigating Officer. The said notice is also admittedly served on the mother of the petitioner. On the same date i.e., 06.02.2024 mentioned in the second notice under Section 41A CrPC for appearance of the petitioner/accused, the investigating officer filed an application before the court of learned Metropolitan Magistrate praying for issuance of non-bailable warrants (NBWs) against the accused stating that the accused is deliberately avoiding to join the investigation and he is required for the purpose of investigation. The relevant paras of the application dated 06.02.2024, so filed bythe investigating officer, reads thus:
“During course of investigation on 03.02.24 and 05.02.2024 notice u/s 41A CrPC was served to mother of the accused namely Aarti Jaiswal as accused was not found present at home but he didn’t join investigation so far. Accused is deliberately avoiding to join the investigation.
It is therefore requested before this Hon’ble court that NBW may please be issued against accused above for the purpose of investigation.”
iii) On the application the learned Metropolitan Magistrate passed an order on 06.02.2024, which reads thus:
“06/2/24
Pr. Ld. APP for the State.
IO/W/SI Meena with case file
IO/ submitted application for NBW accused Lakshay.
Heard
NBW issued accused Lakshay for 12/2/24.
Sd/-”
iv) Apprehending arrest in the said case, an application seeking pre-arrest bail under Section 438 CrPC was filed by the petitioner on 07.02.2024 before the learned Additional Sessions Judge.
v) While, the said application of the petitioner under Section 438 CrPC was pending, an application dated 14.02.2024 was moved by the investigating officer/SI Meena requesting the court of learned Metropolitan Magistrate to initiate process under Section 82 CrPC against the petitioner/accused LakshayJaiswal.
vi) On the said application, the learned Metropolitan Magistrate passed an order on 14.02.2024, whereby the said application was allowed and process under Section 82 CrPC was initiated for proceedings against the petitioner/accused Lakshay Jaiswal for 28.03.2024. The order dated 14.02.2024 reads as under:-
“Ld. APP for the State
I.O SI Meena with Case file
I.O submit application 82 CrPC Heard Application is allowed
82 CrPC against accused Lakshay Jaiswal is issued for 28/3/24 Sd/.”
vii) Sequel to above, the petitioner/accused filed an application for recalling/cancellation of process under Section 82 CrPC issued against the petitioner/accused LakshayJaiswal.
viii) The learned Metropolitan Magistrate, considering the fact that the proceedings under Section 438 CrPC for grant of anticipatory bail are pendi
