1. The present petition under Section 482 Cr.P.C invoking inherent powers of this Court assails the interlocutory order dated 20.12.2014 in Case No. 1100/14 passed by Court of Judicial Magistrate Class I, Ambah Distt. Morena, whereby cognizance has been taken against the petitioner by invoking Section 190(1) Cr.P.C in respect of offences punishable u/S 341, 307 read with Section 34 of IPC and warrant of arrest has been issued against the petitioner.
2. Learned counsel for the rival parties are heard.
3. It is submitted by the learned counsel for petitioner that initially FIR was lodged bearing Crime No. 359/14 at P.S Ambah, Distt. Morena alleging offences punishable u/S 341, 307 read with Section 34 of IPC, whereafter, on death of the injured, Section 302 of IPC was added. During investigation, police did not find cognizable offence against the petitioner and therefore his name was deleted and challan was filed against the other three persons namely Makrand, Ravindra and Bhanu, against whom, trial is said to be pending.
4. In the meanwhile, an application was moved by the victim u/S 190(1) Cr.P.C before JMFC for taking cognizance against the petitioner, which culminated into passing of the impugned order which is assailed herein on various grounds including merits and that the learned Magistrate while taking cognizance cannot directly issue warrant of arrest without first resorting to the other means of issuing summons or bailable warrant.
5. It is submitted by the learned counsel for the petitioner that unless the course of summons or bailable warrants do not bear fruits, the stringent measure of issuance of warrant of arrest should not be resorted to. For this purpose, learned counsel for the petitioner relies upon the decision of Apex Court rendered in case of Vikas v. State of Rajasthan reported in 2013 Cr.L.R(SC) 988.
6. At this juncture, learned counsel for the petitioner does not press this petition on the ground of merits and restricts the challenge only to the extent it directs for issuance of arrest warrant against the petitioner without first resorting to the alternative course of issuance of summons/bailable warrant.
7. This Court is of the firm view that the trial Court should not resort to the mode of issuance of warrant of arrest for ensuring presence of petitioner, unless the lesser stringent mode of issuance of summons/bailable warrant fail to yield the desired result.
8. Thus, without entering into merits of the case, the petition deserves to be allowed in view of the Apex Court decision in case of Vikas v. State of Rajasthan (Supra), relevant portion of which is reproduced below for convenience and ready reference:
12. “The only question for consideration before us is whether in the circumstances of the case, the attendance of the appellant could have been best secured by issuing a summon simplicitor or a bailable warrant instead of a non-bailable warrant in an application under Section 319 of the Cr.P.C
14. The Constitution of India is the grundnorm-the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution. Therefore, Criminal Law also derives its source and sustenance from the Constitution. The Constitution, on one hand, guarantees the Right to Life and Liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in the case of Inder Mohan Goswami (2007) 12 SCC 1 and in the case of Raghuwansh Dewanchand Bhasin v. State of Maharasthra, (2012) 9 SCC 791 wherein it has been observed that personal liberty and the interest of the State Civilized countries 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. The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right or an individual. Therefore, this demands that the Courts have to be extremely careful issuing non-bailable warrants.”
9. Consequently, the impugned order to the extent it directly issues warrant of arrest without first resorting to the other alternative means of issuance of summons or bailable warrant to ensure the presence of the petitioner, is unlawful.
10. Accordingly, the present petition u/S 482 Cr.P.C is allowed to the extent that impugned order dated 20.12.2014 passed in Case No. 1100/14 to the extent it directs for issuance of warrant of arrest against the petitioner is set aside.
11. This Court hastens to add that the impugned order has not been interfered with on merits.
12. The trial Court may first issue summon/bailable warrant to secure presence of the petitioner unless petitioner appears and furnishes bail to the satisfaction of the Court below.
13. No cost.