Raghuvendra S.Rathore - (1.) PASSING of the order dated 31/7/2009 has led the petitioners to file this misc. petition (952/09) in revision petition No.839/09. By the order impugned, the learned trial court had dismissed the application for bail filed by the petitioners in Sessions Case No. 136/04 wherein cognizance was taken against both the petitioners in exercise of the powers under Section 319 Cr.P.C. and process, by way of non-bailable warrants, was issued on 14/5/2009. This court vide order dated 20/7/2009 had disposed of the revision petition (839/09), wherein the order dated 14/5/2009 was under challenge, with the directions that the petitioners shall appear on or before 3/8/2009 and in failing to do so the warrant of arrest passed by the learned trial court for the purpose of securing their presence shall be revived.
(2.) THE relevant facts for considering the present controversy are that a report (515/02) was lodged on 7.9.2002, on the parcha bayan of the injured Smt. Kalawati @ Kallo, for the offences under Sections 341, 323, 324,307 IPC and Section 3 of the SC/ST Act. On conclusion of the investigation, the police filed challan against Kalyan Singh and Ghanshyam Singh for the offences under Sections 341,323, 324,326,307,34 IPC and under Section 3 of the SC/ST Act. THEreafter the case was committed to the court of Sessions and charges were framed against Kalyan Singh and Ghanshyam Singh for the offences under Sections 323,323/34,324/34, 326/34, 307/34 and 341 IPC. THE said accused persons denied the charges and claimed for trial. On commencement of trial, the prosecution produced Kalawati @ Kallo PW1 and Ramkesh PW2. THEreupon the Public Prosecutor filed an application under Section 319 Cr.P.C. which was allowed on 14.5.09. On having taken cognizance against the petitioners Charan Singh and Gopal Singh, the learned trial court issued process against them, by way of non-bailable warrants. THE said order passed by the learned trial court was the matter of challenge in the revision petition (839/09) and the same was disposed of with the directions aforementioned. In compliance of the order dated 20.7.2009 both the persons namely Charan Singh and Gopal Singh appeared before the trial court on 31.7.2009. THEreafter an application for bail was moved by the accused/petitioners but the same came to be dismissed by the order impugned dated 31.7.2009. Learned counsel for the petitioners has submitted that cognizance was taken against the present petitioners on an application under Section 319 Cr.P.C. vide order dated 14.5.09 and they were summoned by non-bailable warrants. Further, he has submitted that the purpose of issuing process on an application while allowing an application under Section 319 Cr.P.C. was to secure presence of the persons who were impleaded as accused in this case, along with other persons. Therefore, he has submitted that after the directions issued by this court and on the appearance of the accused persons before the learned trial court, there was no just reason for the learned trial court to have dismissed the application for bail, particularly when the other two persons namely Kalyan Singh and Ghanshyam Singh are on bail in this very case. He has also submitted that while passing of the impugned order dated 31/7/2009, the learned trial court has not correctly considered the purpose and object with which the order dated 20.7.2009 was passed by this court in a matter where cognizance had been taken against some other persons at the stage of 319 Cr.P.C. and as such it is non-compliance of the said order. On the other hand, the learned Public Prosecutor, assisted by the learned counsel for the complainant, has supported the impugned order passed by the learned trial court. They have submitted that in the first information report, in the statements under Section 161 Cr.P.C. and in the statements of prosecution witnesses recorded during the course of trial, allegations have been levelled against the petitioner Charan Singh for having caused the grievous injury and as such the learned trial court has rightly dismissed his bail application. On having considered the submissions made by the learned counsels for the rival parties and the facts and circumstances of the present case as well as on careful perusal of the impugned order passed by the learned court below, I am of the considered opinion that this misc. petition has merits. The instant criminal case was initiated on 7.9.2002, on the parcha bayan of Smt. Kalavati @ Kallo, lodging the first information report was registered for the offence, inter alia, 307 IPC. On conclusion of the investigation, the police had filed challan only against Kalyan Singh and Ghanshyam Singh. The said conclusion and the report under Section 173 Cr.P.C. filed by the police was accepted as it is by the concerning Magistrate and no whisper or objection had come from any corner, at that stage, in respect of other persons being involved in commission of crime from the material on record. Thereafter the matter was committed to the court of Sessions and the trial commenced after framing of charge against the co-accused namely, Kalyan Singh and Ghaynshayam Singh. The prosecution had then produced witnesses in support of its case and it was after recording of the statements of two witnesses that the Public Prosecutor had filed an application under Section 319 Cr.P.C. On having accepted the said application the learned trial court issued process to the petitioners so as to face trial along with the other accused facing trial before the learned court below. It would be relevant to mention here that a look to the order impugned passed by the learned trial court, particularly the objection raised by the Public Prosecutor to the application of bail filed by the petitioners, reveals that by and large the evidence which was recorded during the course of investigation, has been relied upon. But strangely enough, at the time of filing of the report by the police under Section 173 Cr.P.C, there was no objection or any effort made to the effect that from the material on record persons other than those against whom challan had been filed, should also be made accused in the instant case. It is a settled principle of law, that when a report under Section 173 Cr.P.C. is filed, a Magistrate can summon such persons who are concerned in. the offence, even though their names are not mentioned in the charge-sheet, the reason is that a Magistrate takes cognizance of an offence and not of the offender. The Magistrate can summon the additional persons as an accused on the basis of statements recorded under Section 161 Cr.P.C. and other documents referred in the report under Section 173 Cr.P.C. and he need not to examine the witnesses in the court for that purpose. This principle of law is well settled ever since in the year 1924, as held by the Full Bench decision of the Judicial Commissioners, Sind, in Mehrab v. Emperor. AIR 1924 Sindh 71. Subsequently, this has been followed by the Calcutta High Court in the case of Saifar v. State of West Bengal. AIR 1962 Cal. 133. Thereafter, the Hon'ble Supreme Court has also held in the case of Pravin Chandra Mody v. State of Andhra Pradesh AIR 1965 SC 1185. and that of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167.
(3.) THE fact remains that in the instant case never before the stage of during trial when an application under Section 319 was filed, the prosecution had taken any steps, on the basis of the material already existing on record, that some other persons have to be made as accused and they should be summoned. Now relying upon of the material of the investigation agency, the prosecution is rather taking 'u' turn and had opposed the bail application of the petitioner before the learned trial court. As a matter of fact the only question which was to be considered, at this stage by the learned trial court was as to how the presence of newly added accused, who had surrendered before it, could be ensured during the course of trial. But it appears that this aspect of the matter had been totally given a 'go-bye' by the learned court below. In the instant case it is significant that the persons who had been made accused, as per the prosecution case, since the beginning and are facing trial, have already been enlarged on bail and the persons who have been subsequently impleaded as an accused had been summoned by non-bailable warrants at the first instance and now they have been ordered to remain in jail, as their bail application has been dismissed by the learned trial court. It is to be noted that purpose of issuing process against a person, is to secure his appearance before the court. In view of the trend which has developed in the recent past, the Hon'ble Supreme Court had also noticed that in many cases, bailable and non-bailable warrants are issued casually and mechanically. Therefore, looking to the importance of the issue, a Larger Bench of the Hon'ble Supreme Court had laid down, the principles as to how and when warrants should be issued by the Court, in the case of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors.AIR 2008 SC 251. It had observed as under: "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." Further, the Hon'ble Apex Court had noted that: "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." Therefore, broad circumstances had been enumerated in the case of Inder Mohan Goswami (supra), by the Apex Court as to when non-bailable warrants should be issued while calling a person to the court, as follows: "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 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 places into custody immediately." For the aforesaid reasons, I am of the view that when a process is issued after impleading a person as an accused along with others already facing trial the purpose is to secure their appearance before the court and they should be present during trial, on all dates of hearing thereafter. In such view of the matter, when the newly added accused persons in the instant case had surrendered before the learned trial court, in compliance of the order passed by this court on 20.7.2009, the only question which was to be taken up by the learned trial court was to ensure that they be present on all dates of hearing, during the course of trial. Therefore, the order passed by the learned trial court on 31.7.2009 is not sustainable. ;