Case Note & Summary
By this criminal revision before the High Court of Judicature at Bombay, the applicant-accused challenged three orders passed by the Additional Sessions Judge, Kalyan in Sessions Case No.212 of 2018: order dated 17 September 2021 issuing non-bailable warrant; order dated 27 September 2021 declining to recall the order issuing non-bailable warrant; and order dated 8 October 2021 rejecting the applicant's request to cancel the warrant with cost of Rs.1,000. The applicant contended that on 17 September 2021 he was present in court in the morning session, but when the case was called in the second session because a co-accused was absent, he was not present. The trial court issued non-bailable warrant against him. His subsequent applications to recall and cancel the warrant were rejected, one order noting "No plausible reasons given. Rejected." The applicant's counsel argued that the trial court overlooked the fact that the applicant was present in the morning and there was nothing to indicate he would not voluntarily appear. The High Court, after considering the facts, found that the impugned orders were unwarranted and had been passed by overlooking the authoritative pronouncement of the Supreme Court in Inder Mohan Goswami v. State of Uttaranchal, 2008 AIR (SC) 251. The Court extracted paragraphs 52 and 53 of that decision, explaining that a non-bailable warrant should be issued only to bring a person to court when summons or bailable warrant would be unlikely to have the desired result, such as where it is reasonable to believe the person will not voluntarily appear, police are unable to find the person to serve summons, or the person could harm someone if not placed in custody immediately. The Supreme Court further observed that as far as possible, if a summon will suffice, summons or bailable warrant should be preferred, and 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. Applying these principles, the High Court held that the trial court's orders were illegal and improper. Accordingly, the High Court quashed and set aside the three orders dated 17 September 2021, 27 September 2021 and 8 October 2021. The applicant was directed to mark his presence in the subject case unless his presence was exempted by the court. The revision application was allowed, and rule was discharged.
Headnote
A) Criminal Procedure - Non-Bailable Warrants - Issuance and cancellation require proper scrutiny and application of mind; summons or bailable warrant preferred unless reasonable belief accused will not voluntarily appear - Code of Criminal Procedure, 1973, Section Not mentioned - The High Court quashed orders of Additional Sessions Judge, Kalyan in Sessions Case No.212 of 2018 issuing non-bailable warrant and refusing recall/cancellation because trial court overlooked Supreme Court guidelines in Inder Mohan Goswami v. State of Uttaranchal, 2008 AIR (SC) 251; applicant was present in morning session and no material showed unwillingness to appear. Held, impugned orders dated 17-09-2021, 27-09-2021 and 08-10-2021 quashed and set aside, applicant directed to mark presence unless exempted (Paras 3-9).
Issue of Consideration
Whether the Additional Sessions Judge's orders issuing and refusing to recall/cancel non-bailable warrant against the applicant were legal and proper?
Final Decision
Revision Application allowed. The three impugned orders dated 17 September 2021, 27 September 2021 and 8 October 2021 passed in Sessions Case No.212 of 2018 pending before Additional Sessions Judge, Kalyan were quashed and set aside. Applicant directed to mark presence in subject case unless exempted. Rule discharged.
Law Points
- Non-bailable warrant should not be issued unless summons or bailable warrant would be ineffective
- court must have reasonable belief that accused will not voluntarily appear
- police inability to serve summons or risk of harm
- warrants must be issued after proper scrutiny and application of mind
- summons or bailable warrant preferred
- presence in morning session relevant to voluntary appearance
- trial court orders quashed for overlooking Inder Mohan Goswami
