Jaypal And Another vs State Of U.P.And Another
2023 Latest Caselaw 12655 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:109108
 
A.F.R.
 
Court No. - 68
 
Case :- APPLICATION U/S 482 No. - 12016 of 2023
 

 
Applicant :- Jaypal And Another
 
Opposite Party :- State Of U.P. and Another
 
Counsel for Applicant :- Rajat Kumar Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Rajak Kumar Shukla, learned counsel for the applicants and Mr. K.P. Pathak, learned AGA for the State.

2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned orders dated 15.03.2023, 16.02.2023, 16.01.2023, 14.10.2022, 05.09.2022, 25.08.2022, 15.07.2022, 09.06.2022 passed by learned Chief Judicial Magistrate, Firozabad in Criminal Case No.2685 of 2019 (State vs. Jaypal Singh and others), arising out of Case Crime No.528 of 2017, under Sections 302, 120B IPC, Police Station-Shikohabad, District-Firozabad, pending before the Court of Chief Judicial Magistrate, Firozabad.

3. The factual matrix of the case is that:-

(i) An FIR was lodged by the opposite party no.2 on 16.07.2017 at about 13:10 hrs. against the applicants and 5 other accused persons under Section 302 IPC, which came to be registered as Case Crime No.0528 of 2017 with the allegations that the opposite party no.2, Geetam Singh was presently residing in the house of K.K. Yadav alongwith his son Raghvendra Singh. His son was having some dispute with his wife Kavita. On 04.06.2017 at about 08:00 a.m., the informant went to his office and his son Raghvendra was alone in the house, the landlord and others had gone to take bath, at about 11:50 hrs., on the occasion of Ganga Dussehra, the informant received a phone call from Kavita (his daughter-in-law), who inquired whereabouts of Raghvendra. She also stated that despite repeated calls, her phone call was not being received by Raghvendra. She also requested the informant to go there and find out about the same. On receiving such information, the informant tried to call Raghvendra, but his phone call was not picked up and, thereafter, he with his government vehicle and other police personnels, i.e. Constables Anil Kumar, Virendra Singh and driver Anand went at his rented house and saw that his son was lying on his knees on the ground having a plastic rope around his neck. The informant and others immediately opened the noose and he took his son to the government hospital, Shikohabad, where he was declared dead by the doctors. The informant was in a state of shock, filled the Panchayatnama and the postmortem of the deceased Raghvendra was conducted. In the postmortem report, the cause of death was due to strangulation. Thereafter, the dead body of the deceased was brought by the informant to Mathura and after last rites and other ceremonies were performed, Jeetu s/o Bachchoo Singh, resident of Vill-Navali, Mathura told the informant that on 13.04.2017, Jaypal and Naresh came on motorcycle and took him alongwith them to in-laws house of Raghvendra. There Raghvendra's wife, Kavita and his father; Deshraj, his brother; Monu and Kavita's brother-in-law; Jeetendra, sister; Meena were present. Thereafter, Kavita said that she wants to teach a lesson to Raghvendra and taking assistance of Jaypal and Naresh, she will finally succeed in doing so. They accordingly, planned for the same. Jeetu requested the aforesaid persons not to do any such thing as Raghvendra was his brother-in-law (sala). Jeetu was threatened for life by Jaypal stating that in case he informs the aforesaid plan to someone, he be ready to face dire consequences.

(ii) On 02.06.2017, Jaypal alongwith Pushplata (informant's daughter) came to village Pali Kheda and on 04.06.2017, Jaypal and Naresh left their house at 07:00 a.m. in the morning, stating that they were going to the market for some work and will come back at 04:00 p.m. When they came, their face was covered with clothes and they were terrified. They told the informant's daughter that his brother; Raghvendra wants to meet her. The aforesaid facts were told by Pushplata to the informant and on the basis of the aforesaid information, he was fully confident that his son Raghvendra has been murdered by Jaypal, Naresh, Kavita, Monu, Deshraj, Jeetendra and Meena. Hence, the present F.I.R. was lodged.

(iii) During investigation, as no evidence could be collected against the accused persons including the applicants, therefore, the Investigating Officer submitted final report on 29.10.2017, but the final report was not forwarded to the court as the Circle Officer directed for further investigation in the matter. During further investigation on 8.10.2018 respondent no. 2 moved an application to the investigating officer that the case lodged by him may be dropped. Thereafter, the investigating officer investigated the matter further and approved the final report dated 29.10.2017 and forwarded the same to the court concerned.

(iv) Against the aforesaid final report dated 29.10.2017, the opposite party no.2 filed a protest petition on 21.10.2019 before the court below. Thereafter, on 07.11.2019 the Chief Judicial Magistrate concerned rejected the said final report and summoned the applicants and others, under Section 302, 120-B I.P.C.

(v) Aggrieved by the aforesaid summoning order dated 07.11.2019, the applicants preferred a criminal revision before the court concerned, which was dismissed on 10.05.2022. Against the aforesaid order dated 10.05.2022, the applicant no.1-Jaypal Singh approached before this Court by means of filing a petition under Article 227 of the Constitution of India bearing No.7505 of 2022, wherein the Co-ordinate Bench of this Court was pleased to grant interim protection to the applicant therein. However, the applicant no.2; Naresh Kumar and others have filed a petition bearing Matters Under Article 227 No.4722 of 2022, challenging the aforesaid revisional order dated 10.05.2022, which was dismissed by the Co-ordinate Bench of this Court vide order dated 29.08.2022 mentioning therein that as there is an eye witness account, therefore, the court did not find any illegality in the impugned orders dated 07.11.2019 and 10.05.2022.

(vi) Subsequently, the applicant no.1; Jaypal Singh has filed anticipatory bail application No.7343 of 2022, whereas applicant no.2; Naresh Kumar and others have filed anticipatory bail application no.7503 of 2022, which were dismissed by the Co-ordinate Bench of this Court vide order dated 01.11.2022.

(vii) The other accused persons, namely, Smt. Kavita, Monu @ Rishi, Deshraj and Meena have filed anticipatory bail application nos.7287 of 2022, 7304 of 2022, 7286 of 2022 and 7701 of 2022 respectively, which were granted by the co-ordinate Bench of this Court vide orders dated 01.11.2022 on the ground that eye witnesses have not taken their names.

(v) As the anticipatory bail applications of the applicants; Jaypal Singh and Naresh were rejected on 01.11.2022, prior to which they have already been summoned by the court concerned vide order dated 07.11.2019 and the revision, filed against the aforesaid summoning order, has also been dismissed way back in 10.05.2022, therefore, the applicants, despite having knowledge of the case, are avoiding appearance before the court concerned. Hence, the applicants were again summoned vide order dated 09.06.2022.

(vi) Subsequently, an application was moved by the informant on 15.07.2022 for issuing Non-bailable Warrants against the applicants. Pursuant to the aforesaid application, the concerned Magistrate has issued non-bailable warrants against the applicants vide order dated 15.07.2022. Thereafter, vide order dated 25.08.2022, proceedings under Section 82 Cr.P.C. were initiated against the applicants. The applicants preferred an application before the court concerned alongwith affidavit and status of the case pending before this Court, which was rejected by the court below vide order dated 14.10.2022 issuing process under Section 82 & 83 Cr.P.C. against the applicants. Again on 15.03.2023, as the accused persons including the applicants were not appearing before the court concerned, proceedings U/s 82&83 Cr.P.C. were initiated. Thus, the present case has been filed challenging the aforesaid orders dated 15.03.2023, 16.02.2023, 16.01.2023, 14.10.2022, 05.09.2022, 25.08.2022, 15.07.2022 and 09.06.2022.

SUBMISSIONS BY THE APPLICANTS:-

4. Learned counsel for the applicants submits that by the order dated 17.05.2022, the concerned Magistrate has summoned the applicants. However, summon has not been served on the applicants in terms of section 66 Cr.P.C. which provides that where the persons summoned are in active service of the Government, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by Section 62, and shall return it to the Court under his signature with the endorsement required by that section.

5. He further submits that the concerned court has fixed the next date i.e. 09.06.2022. On that date, straightaway Non-Bailable Warrant has been issued on the application moved by the informant, without verifying the fact as to whether the applicants have been informed about the date fixed i.e. 09.06.2022. Thereafter, on third date 15.07.2022, the learned trial court again issued N.B.W. against the applicants through S.P., Badaun. Subsequently, on 25.08.2022, the learned trial court straightaway issued N.B.W. and proclamation of Section 82 Cr.P.C. again, without verifying the fact as to whether the applicant is aware about the N.B.W. being issued on 15.07.2022.

6. He further submits that the Magistrate has no right to issue bailable warrant or non-bailable warrant or proclamation and attachment U/s 83&83 Cr.P.C., without sufficient service of summon. In support of his contention, he has relied upon the judgment of Apex Court in the case of Inder Mohan Goswami and Anr. vs. State of Uttaranchal and Ors., 2007 AIR SCW 6679, wherein the Hon'ble Apex Court has deprecated such exercise being adopted by the learned trial court. He has also relied upon the judgment of this Court in the case of Purushottam Chaudhary vs. Central Bureau of Investigation Thru. The Superintendent of Police CBI/ACB Lko; decided on 27.02.2023 passed in Application U/S 482 No. - 1974 of 2023.

7. Learned counsel for the applicants, therefore, submitted that the aforesaid impugned orders have been passed by the concerned Magistrate in illegal and arbitrary manner. Therefore, the same are liable to be set aside by this Court.

SUBISSIONS OF THE LEARNED A.G.A. FOR THE STATE:-

8. Per contra, learned AGA for the State submits that there is no illegality or infirmity in the orders impugned as the applicants have sufficient knowledge about the summoning order dated 07.11.2019 against which revision has been filed, which was also rejected, despite the aforesaid, the applicants are avoiding appearance before the court below. Therefore, the court concerned had no other option but to issue Non-bailable warrants and proclamation U/s 82 & 83 Cr.P.C.

9. On the cumulative strength of the aforesaid submissions, learned A.G.A. states that this Court may not exercise its inherent power under Section 482 Cr.P.C. in the present case, and hence the present application is liable to be rejected.

ANALYSIS, REASONING AND CONCLUSION:-

10. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.

11. One of the fundamental foundations of criminal justice system in India is that the accused of an offence has to be present during the entire process of the criminal trial. The concept of ex-parte trial is alien to the Indian legal system as well as the fundamentals of a fair trial enshrined in Article 21 of the Constitution of India. The presence of the accused is necessary both for the framing of the charge and for recording of evidence during the trial. It is imperative, therefore that the court issues guidelines to ensure that a proper procedure is put in place with the use of modern technology to achieve the above.

12. Chapter VI of the Code of Criminal Procedure provides for "processes to compel appearance". Chapter VI of the Code is divided into four parts:-

"Part A - Summons ( Sections 60 - 69), Part B - Warrant of Arrest (Sections 70-81), Part C - Proclamation & Attachment (Sections 82-86), Part D - Other rules regarding processes (Sections 87 - 90)".

13. The issuance of Non-bailable Warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

14. The Court feels that Non-bailable Warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: (a) it is reasonable to believe that the person will not voluntarily appear in court; or (b) the police authorities are unable to find the person to serve him with a summon; or (c) it is considered that the person could harm someone if not placed into custody immediately.

15. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

16. In the judgement of Apex court in the case of Inder Mohan Goswami v. State of Uttaranchal, reported in (2007) 12 SCC 1, it has been held that issuance of non-bailable warrants interferes with personal liberty and the Courts should be extremely careful before issuing non-bailable warrants. The Apex Court further held that warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind. What has to be ensured is that the concerned person was made aware about the legal process pending against him. The relevant portion of the judgment in Inder Mohan Goswami (supra) is reproduced hereinbelow:-

―Personal liberty and the interest of the State

"50. Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice--liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.

51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued."

17. For issuance of a proclamation under Section 82 of the Code, it is necessary that the Court has to be satisfied on the basis of material that a person, despite having knowledge of proceeding, is avoiding the process issued.

18. The court is empowered under Section 83 of the Code to order attachment of the movable and/or immovable properties of the Proclaimed person at any time after the issuance of the proclamation under Section 82 of the Code.

19. So far as the submission made by the learned counsel for the applicants regarding the Magistrate having no right to issue bailable warrants or non-bailable warrants or proclamation/attachment U/s 82&83 Cr.P.C. without sufficient service, the Court finds that initially, the summoning order was passed on 07.11.2019 against which criminal revision has been filed by the applicants, which has been rejected vide order dated 10.5.2022 and, thereafter, the applicants had approached this Court by filing the writ petition under Article 227 challenging the revisional order dated 10.5.2022, therefore, it cannot be said that the applicants have no knowledge about the summoning order or date fixed for appearance before the court below.

20. In the present case, the applicants were well aware of the summoning order and non-bailable warrant issued against them, and clearly, the applicants were dishonestly or fraudulently avoiding appearance before the court below. Therefore, the court concerned has no other option but to issue non-bailable warrants along with the proceedings under sections 82&83 Cr.P.C. Hence, there is no illegality or infirmity in the orders impugned.

21. For the reasons stated above, this Court is of the opinion that this is not a fit case to exercise jurisdiction of this Court under Section 482 Cr.P.C., therefore, prayer so made is refused.

22. With the aforesaid observations, the present application under Section 482 Cr.P.C. is, accordingly, dismissed.

(Manju Rani Chauhan, J.)

Order Date :- 25.04.2023

Jitendra/-