The issuance of non-bailable warrants must be judiciously balanced with personal liberty and societal interest, adhering to established legal principles regarding summons and warrants.

ORAL ORDER

Petitioners are co-accused in Special Case No.741 of 2024 pending on the file of VIII Additional District and Sessions Judge, Bengaluru Rural, Bengaluru.

2. Heard Sri Mayur D Bhanu, learned counsel for petitioner and Smt Rashmi Patil, learned High Court Government Pleader for respondent.

3. This Court, qua two of the accused i.e., accused Nos.23 and 69 in W.P.No.29510 of 2024 disposed on 4-11- 2024 has held as follows:

Against the petitioners, non-bailable warrant is issued as is issued against several of the accused who were not present. Whether a non-bailable warrant could be issued or not for securing the presence of the accused, need not detain this Court for long or delve deep into the matter. The Apex Court in the case of TARSEM LAL V. ENFORCEMENT DIRECTORATE reported in (2024) 7 SCC 61, considers the very issue and holds as follows:

7. If the Special Court concludes that a prima facie case of commission of an offence under PMLA is made out in the complaint, it can order the issue of process in accordance with Section 204 (1)CrPC. Section 204 CrPC reads thus:

“204. Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of Section 87.”

(emphasis supplied)

8. As the punishment for an offence punishable under Section 4 PMLA is of imprisonment for more than three years, in view of clause (x) of Section 2CrPC, the complaint will be treated as a warrant case. Under Section 204 (1)(b), the court can issue either a warrant or summons in a warrant case.

Therefore, while taking cognizance, the Special Court has the discretion to issue either a summons or warrant.

9. Regarding the discretion under Section 204 (1)(b), this Court has laid down the law in Inder Mohan Goswami v. State of Uttaranchal [ Inder Mohan Goswami v. State of Uttaranchal , (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259 : (2007) 10 SCR 847] . This Court held that as a general rule, unless an accused is charged with an offence of heinous crime and it is feared that he is likely to tamper with or destroy the evidence or evade the process of law, the issue of summons is the rule. This Court held that in a complaint case, at the first instance, the court should direct serving of summons along with the copy of complaint. If service is avoided by the accused, initially, a bailable warrant should be issued. If that is not effective, a non-bailable warrant should be issued. Paras 55 and 56 of the said decision read thus : (SCC p. 18)

“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 iss