Ajay Rastogi, J. - (1.) Instant petition under Section 482, Cr.P.C. has been filed assailing order dated 10.9.2007 whereby Judicial Magistrate No. 2, Dholpur while taking cognizance of offence under Sections 420, 467, 468, 471,120-B I.P.C., has summoned the petitioners at the first instance by arrest warrants.
(2.) Counsel for petitioners has confined submissions only with regard to summons through non-bailable warrants. Respondent No. 2 filed a written complaint, which was sent for investigation under Section 156(3) Cr.P.C., on which police submitted negative final report, in which it was observed that prima facie it is a matter of civil nature and no criminal offence is made out. Counsel submits that no protest petition was filed by complainant. However, on the basis of material on record, learned trial Court found substance to take cognizance of offences under Sections 420, 467, 468, 471, 120-B, I.P.C., against petitioners but summoned them through non-bailable warrants vide order impugned despite the fact that petitioner Nos. 1 and 2 are aged 77 years. In support, Counsel placed reliance upon decision of Apex Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) (V) AD (Cr.) (SC) 369 : 2007 AIR SCW 6679 .
(3.) Even from the order impugned it has not been disclosed as to what circumstances prevailed upon learned trial Magistrate to summon petitioners at first instance through non-bailable warrants. In Indermohan Goswami Ps. State (supra), irrespective of nature of offence, the Apex Court observed that power of issuing warrants being discretionary is required to be exercise judiciously with extreme care and caution weighing balance both personal liberty and societal interest before issuing warrant of arrest. The Apex Court observed:- "55. In complaint cases, at the first instance, the Court should direct serving of the summons alongwith 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.";