Delhi High Court
Afzal Ahmed vs State on 24 January, 2022
(VIA VIDEO CONFERENCING)
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% 24th January, 2022
+ CRL.M.C. 176/2022
AFZAL AHMED ..... Petitioner
Through: Mr. Aditya Aggarwal, Adv. and Mr.
Ankit Mutreja, Adv.
versus
STATE ..... Respondent
Through: Ms. Rajni Gupta, APP for the State.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. This is a petition filed by the petitioner under Section 482 Cr.P.C.
seeking cancellation of NBWs issued against the petitioner and for setting
aside of the impugned order dated 22.12.2021.
2. It is submitted by the counsel for the petitioner that the matter was
listed for hearing on 22.12.2021 before the trial court but the petitioner
could not appear before the trial court timely and at 11.30 am the trial court
issued non bailable warrants against the petitioner and also forfeited the
bonds. The petitioner at around 12.30 pm appeared before the trial court, and
moved an application for cancellation of his warrants on the ground that he
got late because his motorcycle went out of order, so he could not reach the
court on time. It is further submitted by the counsel for the petitioner that
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
(VIA VIDEO CONFERENCING)
non-appearance of the petitioner on time was neither intentional nor
deliberate, however he was diligent and has moved the application for
cancellation of warrants on the very same day in pre-lunch session. It is
further submitted by the counsel for the petitioner that petitioner was taken
into custody by the learned trial court.
3. I have perused the order dated 22.12.2021. The impugned order reads
as follows:-
"Hearing is resumed at 11:30 am.
Present: Sh. Masood Ahmad, Ld. Addl. PP for the State.
Accused Md. Aizaz @ Patila and Md. Faizal in person on
bail.
It is submitted by the witnesses that they cannot wait further as they have to
attend their duties.
In the above facts, witnesses are discharged unexamined for today
and they be summoned again for the next date of hearing.
Bail bonds furnished by accused Afzal Ahmad are forfeited.
Issue NBW against accused Afzal Ahmad and notice u/s 446 Cr.P.C
to his surety for the next date of hearing.
Put up for report on the warrants/appearance of the accused on 02-
02-2022
Sd/-
Special Judge (NDPS)/ASJ
North East/Delhi 22.12.2021
At this stage at 12:30 pm, file taken up again on the appearance of
accused Afzal Ahmed and moving of application seeking cancellation of
warrants.
Accused Afzal Ahmed is present with Ld. Proxy Counsel, Sh. S.Wajid
Ali.
It is stated by accused that he could not appear in the Court at the
time of call as his motorcycle went out of order and he reached at 12:00
noon in the Court. Upon query, he stated that he left his house situated at
Ghaziabad to Come to Court at 10:30 am.
Considering the facts where two witnesses were present in the
morning and they could not be examined due to non appearance of
accused, his non appearance appears intentional. As such, his application
for cancellation of warrants is dismissed. His bail bonds has been forfeited.
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
(VIA VIDEO CONFERENCING)
Accused Afzal Ahmed is taken into custody and he be produced on
next date of hearing i.e 02-02-2022.
Witnesses be summoned for next date.
Sd/-
Special Judge (NDPS)/ASJ
North East/Delhi 22.12.2021"
4. It has been mainly submitted by the counsel for the petitioner that
warrants were issued by the trial court during the early hours of morning,
and it is further submitted that petitioner has moved the application for
cancellation of warrants on the same very day, which shows his bonafide.
5. Counsel for the petitioner has placed reliance upon the judgment in
the case of Inder Mohan Goswami and Anr. Vs.State of Uttranchal and
Ors., (2007) 12 SCC 1 to submit that non-bailable warrants should not be
issued casually and mechanically as the same involves interference with the
personal liberty of an individual. He has also placed reliance upon the
judgment in the case of Pratap Verma Vs. State (NCT of Delhi) Crl. M.C.
1129/2016.
6. It is submitted by learned APP that two police witnesses were present
on the said date, and because of non-appearance of the accused-petitioner
the witnesses had to be sent back unexamined.
7. I have heard the counsel for the petitioner, and learned APP for the
State.
8. In Inder Mohan Goswami (supra), Hon'ble Supreme Court discussed
the issue as to how and when warrants should be issued by the Court. The
relevant observations find mention in para 47 to 57 and it will be
advantageous to reproduce the same which is as follows:
47. Before parting with this appeal, we would like to discuss an issue
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Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
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which is of great public importance, Le., how and when warrants
should be issued by the Court? It has come to our notice that in many
cases that bailable and non-bailable warrants are issued casually and
mechanically. In the instant case, the court without properly
comprehending the nature of controversy involved and without
exhausting the available remedies issued non-bailable warrants. The
trial court disregarded the settled legal position clearly enumerated
in the following two cases.
48. In Omwati v. State of UP and Anr., this Court dealt with a rather
unusual matter wherein the High Court firstly issued bailable
warrants against the appellant. And thereafter by issuing non bailable
warrants put the complainant of the case behind bars without going
through the facts of the case. This Court observed that the unfortunate
sequel of such unmindful orders has been that the appellant was taken
into custody and had to remain in jail for a few days, but without any
justification. Whatsoever. She suffered because facts of the case were
not considered in proper perspective before passing the orders. The
court also observed that some degree of care is supposed to be taken
before issuing warrants
49. In State of U.P. v. Poosu and Anr. 2976 Cri L 1373 at para 13
page 5, the Court observed
Whether in the circumstances of the case, the attendance of the
accused respondent can be best secured by issuing a bailable
warrant or non bailable warrant, is a matter which rests
entirely in the discretion of the court. Although, the discretion
is exercised judiciously, it is not possible to Computerize and
reduce into immutable formulae the diverse considerations on
the basis of which this discretion is exercised. Broadly
speaking, the court would take into account the various factors
such as the nature and seriousness of the offence, the character
of the evidence, circumstances peculiar to the accused,
possibility of his absconding, larger interest of the public and
the State.
Personal liberty and the interest of the State
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Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
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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 the
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
52. Just as liberty is precious for an individual so is the interest of the
society in maintaining low and order. Both are extremely important
for the survival of a civilized 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.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court
when summons of bailable warrants would be unlikely to have the
desired result. This could be when:
It is reasonable to believe that the person will not
voluntarily appear in Court; or
the police authorities are unable to find the person to
serve him with a Summon; or
it is considered that the person could harm someone if
not placed into custody immediately.
54. 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
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Signing Date:27.01.2022
14:48
(VIA VIDEO CONFERENCING)
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.
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 issuance of the non-bailable
warrant should be resorted to Personal liberty is paramount,
therefore, we caution courts at the first and second instance to refrain
from issuing non-bailable warrants.
56 The power being discretionary must be exercised judiciously with
extreme care and caution. The court should properly balance both
personal liberty and societal interest before issuing warrants. There
cannot be any straight jacket formula for issuance of warrants but as
a general rule, unless an accused is charged with the commission of
an offence of a heinous crime and it is feared that he is likely to
tamper or destroy the evidence or is likely to evade the process of law,
issuance of non bailable warrants should be avoided.
57. The Court should try to maintain proper balance between
individual liberty and the interest of the public and the State while
issuing non-bailable warrant.
9. In Naresh Kumar(supra), the situation was substantially similar. The
accused could not appear in the Court in time due to change in Court Room.
His non-bailable warrants were issued at 10:30 a.m. He appeared before
Learned MM at about 10:40 a.m. He thereafter moved an application for
cancellation of non-bailable warrants. Instead of considering the application,
the same was adjourned and execution of non-bailable warrants was not
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Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
(VIA VIDEO CONFERENCING)
stayed. Facing threat of arrest, the petitioner approached this Court.
Provisions of Rule 3 of Chapter 1, part0C(i) in Part III of Delhi High Court
Rules were referred which reads as under: -
"Rule 3.
Warrant should not be issued unless absolutely necessary
"Great care should be taken not to issue a warrant when a summon
should be sufficient for the ends of justice. Magistrate should
remember that the issue of a warrant involves interference with the
personal liberty of a person and should take care to see that no
greater hardship is caused than is necessary. Under Section 76 of the
Code (now Section 71 of new Code) o Court has the discretion to
make the warrant bailable, and this discretion should be exercised
with due regard to the nature of the offence, the position of the
accused person and the circumstances of the case."
10. In Puneet Singh Chauhan & Anr. Vs. State & Anr., 207(2003) DLT
220, it has been observed that the Trial Courts are acting contrary to the
aforesaid mandate of law while issuing non-bailable warrants on the very
first call and in the pre-lunch hours. If an accused tries to evade the process
of law or intentionally delays the proceedings, the Magistrate has the power
to issue non-bailable warrants. Such a power is, however, to be exercised
only in those circumstances and not lightly and not in terrorem.
11. In the instant case, perusal of the order shows that two prosecution
witnesses namely Inspector Nafe Singh and ASI Fatesh Singh were present
for their examination but could not be examined because of non-appearance
of the petitioner. The order reveals that petitioner appeared before the trial
court at about 12.30 pm on the very same date, and an application for
cancellation of the warrants was moved, but the learned trial court dismissed
the application and forfeited the surety.
12. The bonafides of the petitioner are reflected from the fact that on the
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
(VIA VIDEO CONFERENCING)
same very day rather in pre-lunch session itself he has moved an application
for cancellation of his warrants explaining reasons for his getting late in
reaching the court. As far as the presence of two police officials was
concerned, no doubt they were sent unexamined by the trial court, but the
trial court should not have issued NBWs against the petitioner in early hours
of the day and on appearance of the petitioner could have put him to terms
rather than taking him into custody. There is nothing in the impugned order
to show that the petitioner is guilty of such conduct on previous occasions
also. So keeping in view the totality of facts and circumstances application
moved by the petitioner did not find favour with the learned trial court
resulting in its dismissal on the very same day i.e 22.12.2021 and petitioner
was taken into custody, therefore, the impugned order in these
circumstances cannot be sustained and is accordingly set aside. Personal
bond and surety bond are restored and petitioner be released forthwith from
the Jail, if not wanted in any other case.
13. The petition stands disposed of accordingly.
14. Digitalized copy of this order be also sent to the concerned Jail
Superintendent for immediate release of the petitioner.
RAJNISH BHATNAGAR, J
JANUARY 24, 2022/ib
Signature Not Verified
Digitally Signed By:KAMAL
Signing Date:27.01.2022
14:48
