Sunday, April 2, 2023

Allahabad HC says its wrong to issue NBW without following process

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The Allahabad High Court has said that it is wrong to issue a non-bailable warrant directly on behalf of the trial court without completing prior process. 

The Court, while setting aside the order issued by the lower court and the entire process, has directed the lower court to pass a fresh order in the matter.

A single-judge Bench of Justice Neeraj Tiwari passed this order while hearing a criminal appeal filed by Peer Mohammad.

By means of the criminal appeal under Section 14A-1, the appellant is assailing the legality and validity of the order dated 19.08.2020 and charge sheet dated 06.07.2020 as well as entire proceeding of Case under Sections 419, 420, 467, 468, 471, 504, 506 of IPC and Sections 3(2)5A and 3(1)S of SC/ST Act, Police Station Pashchimi Sharira, District Kaushambi, pending in the Court of Special Judge SC/ST Act, Kaushambi.

The counsel for the appellant submitted that the chargesheet was submitted on 19.08.2020 and on the very same date, after taking cognizance, a non-bailable warrant has been issued against the appellant, which is bad in law.

It is next submitted that while issuing non-bailable warrants, it is required on the part of the Magistrate concerned to record satisfaction, but in the case, no satisfaction has been recorded as to why, while taking cognizance, non-bailable warrant has been issued.

It is further submitted that it is required on the part of Courts to first issue summoning order, thereafter bailable warrant, then a non-bailable warrant, if required.

The counsels for the opposite parties opposed the submissions made by the counsel for the appellant, but could not dispute the aforesaid facts as well as legal submissions.

The Court considered the submissions advanced by counsels for parties and perused the records as well as judgments of the Court as well as Apex Court passed in Smt Usha Jain (Supra) and Satender Kumar Antil (Supra).

The Court noted that in this case, facts are undisputed. After submission of chargesheet, the court below has taken cognizance vide order dated 19.08.2020 and by the same order, non-bailable warrant has also been issued against the appellant without assigning any reason. In Section 87 of CrPC, it is clearly provided that while issuing summons for arrest, reasons are required to be given in writing, but without going through the same, immediately after taking cognizance, a non-bailable warrant has also been issued.

The Court in the matter of Usha Jain (Supra) has held that satisfaction has to be recorded for issuance of bailable warrants and copy of said judgment has also been circulated to all the Judicial Officers in the State for strict compliance for recording satisfaction with regard to the service of summons before issuing bailable or non-bailable warrants. Recently, in the matter of Satender Kumar Antil (Supra), Apex Court, reiterating the law laid down by the Apex Court in the matter of Inder Mohan Goswami (Supra), has held in a very clear words that Courts will have to adopt the procedure for issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued, if so warranted.

Therefore, it is required on the part of Judicial Officers to follow the provisions of Section 87 CrPC as well as law laid down by the Courts while issuing summoning orders, bailable or non-bailable warrants as the case may be. If the facts of the case require immediate issuance of bailable or non-bailable warrants while taking cognizance, it is required on the part of the Magistrate to record his satisfaction, the Court said.

“It appears that Judicial Officers are not following the provisions of CrPC as well as law laid down by the Courts and passing orders in a very casual manner,” the Court observed while allowing the appeal.

“So far as present case is concerned, impugned order dated 19.08.2020 passed by Special Judge, SC/ST Act, Kaushambi is not in accordance with the provisions of Section 87 CrPC as well as law laid down by the Courts in the matters of Smt Usha Jain( Supra), Satender Kumar Antil (Supra) & Inder Mohan Goswami (Supra), therefore, the same is bad and is hereby quashed.

Special Judge, SC/ST Act, Kaushambi is directed to issue fresh summoning orders in accordance with law.

Registrar General is directed to circulate this order to all the Judicial Magistrates in the State through District Judges to ensure strict compliance of provisions of CrPC as well as law laid down by the Courts while issuing summoning order, bailable or non-bailable warrants, as the case maybe,” the Court ordered.

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