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Rajesh Walia VS. State Of Karnataka

    Criminal Petition No. 1580 of 1997

    Decided On, 30 July 1997

    At, High Court of Karnataka


    For the Petitioner: S.G. Bhagawan, Advocate. For the Respondent: S. S. Koti, Addl. SPP.

Judgment Text

This petition is filed u/S. 482, Cr.P.C. to quash the order dated 5-3-1997 passed by the Court of the VII Addl. C.M.M. Bangalore, in Crime No. 55/97 issuing non-bailable warrant, against this petitioner. Notice of this petition is served on the learned S.P.P.

2. Heard. The learned Counsel for the petitioner submitted that the offences alleged against the petitioners are under Sections 341, 323 and 506, IPC. All these offences are ba

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ilable. Accordingly the learned Magistrate was pleased to release them on bail accepting cash surety offered by the accused persons. He has not imposed any conditions nor he has given any date for the accused to appear before the Court. The charge-sheet has not yet been filed. But it appears the learned Magistrate has taken up the case on 5-3-1997 and directed to issue non-bailable warrant against the petitioner. The said order is questioned in this petition.

3. The learned Counsel for the petitioner submitted that the order passed by the learned Magistrate without assigning any specific reason to issue non-bailable warrant is illegal. He further submitted that no date was given to the accused to appear and therefore the accused did not appear.

4. However, the learned S.P.P. also was unable to support the impugned order. Under those circumstances, it is now necessary to draw the attention of the learned Magistrate to the decision rendered by their Lordships of the Supreme Court, reported in AIR 1982 SC 1463 : (1982 Cri LJ 1943); Free Legal and Committee v. State of Bihar, wherein it is held as under (Para 2 of Cri LJ) :

"We, therefore, direct that whenever an accused is released on bail he need not be required to appear before the Court until the charge-sheet is filed and the process is issued by the Court."

Further it is observed :

"We hope and trust that hereafter this procedure will be followed by the Magistrate unless there are any particular reasons for not doing so."

5. In this case as stated above, no particular reason is assigned by the learned Magistrate to call the case on 5-3-1997 and to issue non-bailable warrant without even issuing summons to the accused in a bailable offence.

6. It is further held by the Andhra Pradesh High Court in a decision, reported in 1997 Cri LJ 1960; V. Venkateshwar Rao v. State of Andhra Pradesh, that there is no provision in the Criminal Procedure Code providing for the appearance of the accused released on bail, in the Court even before the charge-sheet is filed. It is also further observed as under at page 1961 :

"Thus, the entire scheme of the Code of Criminal Procedure manifests that where an accused person is released pending investigation of the crime, there is no need for the accused to appear before the Court before the filing of the charge-sheet. Therefore, the issuance of warrant of arrest to the accused for non-appearance even before the charge-sheet is filed, will be in contravention of provisions of Cr.P.C. The direction to arrest the accused and produce him before the Court for non-appearance even before the charge-sheet is filed, is in violation of Article 21 of the Constitution of India as it interferes with his liberty."

7. Further this High Court also issued a Circular which reads : "The High Court, after carefully considering the matter and with a view to prevent recurrence of such incidents, hereby impresses upon the Magistrate the need to exercise caution before issue of non-bailable warrants."

8. From the above discussion, it is abundantly clear that the Magistrate cannot issue non-bailable warrant according to their whims and fancies without assigning any specific reason for doing so. It is incumbent on the Magistrate to satisfy himself as to whether non-bailable warrant will have to be issued under the compelling circumstances. If the accused failed to appear before the Court on the date fixed by the Court for his appearance be one of the reasons for the Magistrate to issue non-bailable warrant. This direction will have to be scrupulously followed in future, lest the matter will be viewed seriously.

9. With this observation, the petition is allowed and the order dated 5-3-97 is set aside directing the Magistrate to take action as he deems fit under the circumstances of the case and in the light of the above observations.

Petition allowed

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