- (1.) THE learned counsel for the petitioners has made a very limited prayer before this Court. According to him, he is not challenging the impugned order on merit, but merely requests that the non-bailable warrants issued against the petitioners should be converted into bailable ones.
(2.) MR. A.K. Gupta, has contended that when a process is issued under Section 319 Cr.P.C., initially summons should be issued, or at worse bailable warrants should have been issued, instead of issuing non-bailable warrants at the first instance. In order to buttress this contention, the learned counsel has relied upon the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. [AIR 2008 SC 251]. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has contended that according to Manisha (PW-4) and Triloka Ram (PW-5), the petitioners had come armed with ?lathies? and had assaulted the deceased. Therefore, they had committed an offence under Section 302/34 IPC. Hence, the learned trial court was certainly justified in issuing non-bailable warrants against them. Heard the learned counsel for the parties and perused the impugned order. In the case of Inder Mohan Goswami (Supra), the Honourable Supreme Court has observed as under : "Personal liberty and the interest of the State Civilized countries have recognized that liberty 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. 48. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could 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. 50. 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. 51. 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 court's 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. 52. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. 53. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant". Initially, although the petitioners were named in the FIR, but after a thorough investigation, the prosecution itself had filed an application under Section 169 Cr.P.C. stating that the petitioners were not the accused in this case. It is only subsequently, during the course of trial, when evidence started to trickle in that the learned trial court has exercised its power under Section 319 Cr.P.C. The petitioners are not the main accused in a case under Section 302 IPC, but are peripheral accused. Therefore, they are being tried with the aid of Section 149 IPC. Moreover, there is no evidence to show that from the date when the bail was granted to them, they have ever misused the liberty granted by the trial court. In fact, according to the learned counsel for the petitioners, they have been living peacefully in their village. Hence, keeping in mind the principles laid down by the Apex Court in the above mentioned case, this Courts is of the opinion that the non-bailable warrants issued against the petitioners should be converted into bailable one. It is, therefore, directed that in case the petitioners, (1) Bhanwar Lal S/o Ramu Ram and (2) Suresh S/o Bhanwar Lal, appear before the learned Additional District and Session Judge (Fast Track), Sikar on or before 16th May, 2011 and each of them furnishes bail bonds of Rs.30,000/- (Rs. Thirty Thousand), with two sureties in the like amount, to the satisfaction of the Sessions Judge, they shall be released on bail. With these observations, the petition is, hereby, disposed of. ;