Akhilesh Tiwary @ Akhilesh Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 3356 Jhar

                                           1                         Cr.M.P. No.1997 of 2023




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 1997 of 2023

                 Akhilesh Tiwary @ Akhilesh Kumar Tiwary, aged about 34 years,
                 son of Kishore Tiwary, resident of Usardih, P.O. & P.S. Chas (M),
                 Dist. Bokaro                       ....               Petitioner
                                         Versus

                 The State of Jharkhand
                                                    ....                  Opp. Party

                                         PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioners : Mr. Mahesh Tewari, Advocate For the State : Mr. Manoj Kr. Mishra, Addl. P.P.

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

for quashing the order dated 05.06.2023 passed by the learned

Chief Judicial Magistrate, Bokaro in Chas P.S. Case No.64 of 2016,

corresponding to G.R. No. 329 of 2016 registered for the offences

punishable under Sections 420, 467, 468, 471 and 34 of Indian

Penal Code.

3. The brief fact of the case is that the petitioner is the accused of

the said case. The petitioner filed an anticipatory bail application

before this Court and during the pendency of the said case, a

coordinate Bench of this Court passed an order that no coercive

steps be taken against the petitioner during the pendency of the

said anticipatory bail application. Police submitted charge sheet

inter alia against the petitioner for having committed the offences

punishable under Sections 420, 467, 468, 471 and 34 of Indian

Penal Code mentioning therein in paragraph no.13 regarding the

date of arrest that there is order of no coercive action.

4. After submission of charge sheet without issuing any summons,

the learned Chief Judicial Magistrate, Bokaro straightway issued

non-bailable warrant of arrest against the petitioner and observed

that since the prayer of anticipatory bail of the petitioner has been

rejected so the petitioner has full knowledge about the case but

still he is not appearing in the court. Hence, non-bailable warrant

of arrest was issued.

5. Learned counsel for the petitioner relied upon the judgment of

Hon'ble Supreme Court of India in the case of Aman Preet Singh

vs. C.B.I. through Director in Criminal Appeal No. 929 of 2021

arising out of SLP (Crl.) No. 5234 of 2021 dated 02.09.2021 : 2021

SCC OnLine SC 941, the relevant portion of which reads as under

:-

"10. Xxxxxxxxxxxx It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. Xxxxxxx"

And submits that as has been observed by the Hon'ble Supreme

Court of India in the said case, it was incumbent upon the

Magistrate to issue summons after submission of charge sheet

against him but without issuing summons, the learned Chief

Judicial Magistrate, Bokaro committed an illegality by straightway

issuing non-bailable warrant of arrest.

6. In this respect, learned counsel for the petitioner also relies upon

the judgment of Hon'ble Supreme Court of India in the case of

Siddharth vs. The State of Uttar Pradesh & Anr. in Criminal

Appeal No. 838 of 2021 arising out of SLP (Crl.) No. 5442 of 2021

dated 16.08.2021: (2022) 1 SCC 676, the relevant portion of which

reads as under:-

"9. Xxxxxxxxxx We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the chargesheet being filed non- bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet. xxxxxxx."

7. It is next submitted that the petitioner is ready and willing to

appear before the learned Chief Judicial Magistrate, Bokaro as and

when directed by this Court to appear. It is further submitted that

the order dated 05.06.2023 by which the learned Chief Judicial

Magistrate, Bokaro has straightway issued non-bailable warrant of

arrest being not sustainable in law be quashed and set aside.

8. Learned Additional Public Prosecutor on the other hand

vehemently opposes the prayer for quashing the order dated

05.06.2023 passed by the learned Chief Judicial Magistrate, Bokaro

in Chas P.S. Case No.64 of 2016, corresponding to G.R. No. 329 of

2016 and submits that this criminal miscellaneous petition being

without any merit be dismissed.

9. Having heard the submissions made at the Bar and after going

through the materials in the record, it is pertinent to mention here

that after submission of charge sheet against the petitioner, the

learned Chief Judicial Magistrate, Bokaro ought to have issued

summons to the petitioner and upon summons if the petitioner

would not have appeared then warrant of arrest could have been

issued by the learned Chief Judicial Magistrate, Bokaro but the act

of the learned Chief Judicial Magistrate, Bokaro by straightway

issuing non-bailable warrant of arrest without recording any

reason that the accused has either been absconding or shall

not obey the summons or has refused to appear despite proof

of due service of summons upon him; is certainly not

sustainable in law. Hence, the order dated 05.06.2023 passed by

the learned Chief Judicial Magistrate, Bokaro in Chas P.S. Case

No.64 of 2016, corresponding to G.R. No. 329 of 2016 so far as it

relates to issue of non-bailable of warrant of arrest against the

petitioner is quashed and set aside.

10. The petitioner is directed to surrender before the learned court

below within four weeks, failing which the learned Chief Judicial

Magistrate, Bokaro may issue fresh non-bailable warrant of arrest

against the petitioner.

11. In the result, this criminal miscellaneous petition is allowed.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 5th September, 2023 AFR/Sonu-Gunjan/-