- (1.) THE petitioners have been arrayed as A-1 to A-6 are facing trial for the alleged offences under Sections 85(1) and (ii) r/w 86-A of the Employees' State Insurance Act (hereinafter referred to as "the Act") and they have come forward with this petition seeking for the relief of setting aside the order passed by the learned Judicial Magistrate No.II, Coimbatore, dated 12.07.2002 issuing the non-bailable warrant against the petitioners.
(2.) MR. C.S. Dhanasekaran, learned counsel for the petitioners submitted that even on the first hearing of the case only giving intimation about the case and not serving the summons, the learned Magistrate straight away issued the non-bailable warrant against the petitioners and as such the same is liable to be set aside. The learned counsel for the respondent contended that the petitioners shall appear before the learned Magistrate and shall file a petition to recall the non-bailable warrant, but instead approached this Court for setting aside the order. I have carefully considered the rival contentions put forward by either side and also perused the impugned order and other materials available on record.
(3.) A perusal of the materials discloses that the summons itself was not served on the petitioners and on the other hand it is seen that they have only intimated about the case and as such this Court is of the considered view that there is absolutely no necessity or reason for the learned Magistrate to straight away issue the non-bailable warrant. As rightly pointed out by the learned counsel for the petitioners, the Honourable Apex Court in Inder Mohan Goswami V. State of uttaranchal & Ors. reported in 2007 (2) MWN (Cr.) 451 (SC) has held that, "52. 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 Court 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. 53. 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 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. 54. 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 Courts 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." Therefore, in view of the above settled principle of law, this Court is constrained to state that the learned Magistrate ought not to have issued non-bailable warrant against the petitioners in spite of the fact that summons were not served and only certain intimation was sent to the petitioners and as such this Court is constrained to set aside the impugned order dated 17.07.2002 passed by the learned Judicial Magistrate No.II, Coimbatore in C.C.No.364 of 2002. This petition is ordered accordingly. Consequently, connected miscellaneous petition is closed. Considering the fact that the case itself related to the year 2002, this Court is also constrained to direct the learned Magistrate to expedite the trial as expeditiously as possible.;