Rajasthan High Court - Jodhpur
C.R. Agarwal vs State Of Rajasthan on 13 January, 2022
Bench: Dinesh Mehta
(1 of 6) [CW-106/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 106/2022
C.R. Agarwal S/o Shri Hajari Lal Agarwal, Aged About 71 Years,
R/o 228, Jwala Vihar, Chopasani Road, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Home
Department, Government Of Rajasthan, Secretariat,
Jaipur.
2. The Secretary, Law And Legal Affairs, Government Of
Rajasthan, Secretariat, Jaipur.
3. The Director (Prosecution), Government Of Rajasthan,
Secretariat, Jaipur.
4. The Regional Passport Officer, Government Of India,
Ministry Of External Affairs, J-14, Jhalana Dungri, Jaipur.
5. The Officer Incharge, Passport Department Sun Tower, Old
National Handloom Building, Pal Road, Johdpur-342008.
6. The Station House Officer, Police Station Pratanagar,
Jodhpur.
----Respondents
For Petitioner(s) : Mr. Rakesh Arora through V.C.
For Respondent(s) : Mr. Sandeep Shah, AAG through V.C.
Mr. Mukesh Rajpurohit, ASG through
V.C.
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JUSTICE DINESH MEHTA
Order
13/01/2022
1. The petitioner who was appointed as a Medical Officer,
attained superannuation while he was working as an Assistant
Professor - Radiology. During his service as a Medical Officer and
as a Radiologist, he had given a number of medical reports, for
which he is required to appear in various Courts for evidence,
even till today.
2. According to the petitioner, he has been diligently
discharging his duty/obligation of appearing in the witness box as
and when called for until April, 2021, when he unfortunately got
infected with COVID-19 followed by Sino Nasal Mucormycosis, due
to which he remained confined to bed for considerable time and
even thereafter, post COVID complications are troubling him in
performing even routine activities. Petitioner's plight is further
aggravated as both his children are settled abroad leaving his wife
to be his sole attendant.
3. The petitioner had applied and was issued a passport bearing
No.V3678140, having its validity up to 10.11.2031.
4. The petitioner's children who are settled abroad wish to take
him to United States of America for his treatment but, before the
petitioner could undertake the travel, he came to receive a notice
dated 26.11.2021, issued by the respondent No.4 (the Regional
Passport Officer, Government of India, Ministry of External
Affairs), asking as to why action against him not be taken under
section 12(1)(b) of the Passports Act, 1967 for concealing the fact
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that a bailable warrant has been issued to him in case
No.126/2014.
5. By yet another notice dated 14.12.2021, the petitioner has
been called upon to show as to why his passport should not be
impounded in exercise of the power under section 10(3)(e) of the
Passports Act, 1967.
6. The reason that was given for issuance of the above referred
notices was, that a bailable warrant has been reportedly issued to
the petitioner by the Court (ACJM No.4, Jodhpur Metropolitan).
7. On 07.01.2022, when this case was being considered for
motion hearing, the Registrar Judicial of the Court was asked to
call for a factual report from the learned ACJM No.4, Jodhpur
Metropolitan about the reasons and the circumstances in which
the bailable warrant has been issued to the petitioner in the
aforesaid case No.126/2014.
8. Pursuant to the direction given by this Court, the concerned
Court - Senior Civil Judge & Additional Chief Judicial Magistrate
No.4, Jodhpur Metropolitan, Jodhpur has sent a report indicating
that the case No.126/2014 relates to an FIR that was lodged
against one Shyamlal, who has been accused of offences under
sections 274, 337 & 338 of IPC and 41/77 of the Motor Vehicles
Act, 1988. The petitioner, Mr. C.R. Agarwal, is supposed to give his
evidence, in that case as his name has been enlisted in the list of
the witnesses produced by the prosecution. The report furnished
by the Senior Civil Judge & Additional Chief Judicial Magistrate
No.4, Jodhpur Metropolitan, Jodhpur is taken on record.
9. It would be apt to paste a scanned copy of the report dated
13.01.2022 hereinbelow:
(4 of 6) [CW-106/2022]
10. A perusal of the report dated 13.01.2022, makes it
abundantly clear that the petitioner is not involved in any sort of
offence. The bailable warrant has been issued for securing his
presence as a witness, that too because the case in question
No.126/2014 is more than 8 years old; no summons has ever
been served upon him.
11. Mr. Rakesh Arora, learned counsel for the petitioner submits
that owing to impaired vision and incoherent speech, the
petitioner is not in physical and mental condition even to
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comprehend, much less appear and give his testimony in the
Courts.
12. Heard learned counsel and perused the record.
13. This Court is constrained to observe that the learned Senior
Civil Judge and Additional Chief Judicial Magistrate No.4, Jodhpur
has not recorded any reason worth the name before resorting to
the extreme mode of securing presence of the petitioner - a
witness, who is not even an accused. Further, while requiring
petitioner's presence as a witness, the learned Judge was swayed
by the fact that the case in question is more than 8 years old. He
did not care to see that petitioner is a witness and not an accused
and no notice/summons by that time had even been issued to the
petitioner.
14. Calling a witness by a bailable warrant without prima-facie
being satisfied that the witness is avoiding appearing in the Court,
or without an apprehension of him fleeing cannot be
countenanced. In the opinion of this Court, learned Judge ought
not to have resorted to issuing warrant. As per the judgment of
Hon'ble the Supreme Court in case of Inder Mohan Goswami &
Ors. Vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1,
a Court is firstly required to issue summons, then bailable warrant
and in rarest of rare case, the Court can resort to issuing arrest
warrant even to an accused. When it comes to the petitioner, he is
simply a witness. The warrant, which suffers from inherent
illegality, is, hereby quashed, while exercising powers of
superintendence vested in this Court.
15. Since the warrant being fulcrum of the notices dated
26.11.2021 and 14.12.2021 has been annulled, the impugned
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notices, as a natural corollary are rendered non est or a nullity.
The same are also quashed.
16. Resultantly, the petitioner shall be free to travel abroad on
the basis of the passport issued to him (No.V3678140), for his
treatment or otherwise.
17. Needless to observe that after the treatment, if the
petitioner recovers and attains ability to depose, showing
allegiance to the hippocratic oath and solemn duty to lead
evidence, he would make himself available, as and when required.
(DINESH MEHTA),J
49-Ramesh/-
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