Patna High Court
Ashok Thakur vs The State Of Bihar on 20 January, 2025
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4228 of 2024
Arising Out of PS. Case No.-38 Year-2023 Thana- SC/ST District- Madhubani
======================================================
1. Ashok Thakur Son of Kishori Thakur Village- Faint, Ps- Basopatti, Dist-
Madhubani
2. Pawan Thakur Son of Kishori Thakur Village- Faint, Ps- Basopatti, Dist-
Madhubani
3. Punita Kumari wife of Surendra Thakur Village- Faint, Ps- Basopatti, Dist-
Madhubani P/A- Belour, Ps- Manigachhi, Dist- Darbanga
... ... Appellant/s
Versus
1. The State of Bihar
2. Ramchandra Ram Son of Late Dukhmochan Ram Village- Faint, Ps-
Basopatti, Dist- Madhubani
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Subhash Kumar Jha, Advocate
For the Respondent/s : Mr.Binay Krishna, APP
For the informant : Mr.Ravi Prakadh, Advocate
Mr. Udeshya Kumar Yadav, Advocate
Mr. Rajesh Kumar, Advocate
Mr. Vinod Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
Date : 20-01-2025
Heard the parties.
2. Pursuant to the last order of coordinate bench, SI,
Aman Kumar Singh is present in the Court.
3. The present application has been preferred for
setting aside the Order dated-10.06.2024, passed in G.R. No. 77
of 2023/S.C. & S.T. P.S. Case No. 38 of 2023, by the learned
Additional Sessions Judge Cum Special Judge, S.C. & S.T. Act
Madhubani, by which he has pleased to pass an order of
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
2/20
proclamation (U/sec.-82 of Cr. P.C. process) against the
appellants in connection with S.C. & S.T. P.S. Case No. - 38 of
2023, dated 10.06.2023, corresponding to G.R. No.- 77 of 2023
registered for offence u/sec.- 341, 323, 504, 354(B), 379, 506/34
of Indian Penal Code and Section and 3/4 of Daiyn Act and
sections 3(i)(r)(s)(w), 3(2)(va) of S.C. & S.T. Act 1983 as
neither summon nor B.W. and N.B.W. have been issued against
the appellants nor Tamila of same are available on record.
4. As per the prosecution story, the informant alleged
that eyeing his piece of land, the accused came and wanted to
construct the house. When the informant objected, was abused
by taking caste name and allegation against these appellants
is/are that he put a towel around his neck and tried to press it
while other accused outraged the modesty of his wife as also
took away certain amount/ornaments. As the Police earlier
failed to lodge FIR, filed complaint whereafter finally the FIR
was lodged.
5. The case came to be registered on 10.06.2023. The
investigation took place in the matter and finally on 18.12.2023,
the Police submitted petition before the concerned Court for
issuance of warrant against the accused persons including these
appellants. The order as such was received by the Police on
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
3/20
20.12.2023
by which non bailable warrants were issued against
all the accused persons including the appellants.
6. From the record, it seems that the other accused
persons immediately preferred bail after surrendering before the
Count on 27.01.2024 and they were extended the relief.
However, the appellants evaded arrest. The case diary shows
that the Police visited the house of the appellants alongwith the
warrant on 18.01.2024 but the accused were found absconding.
On 28.02.2024 again, the Police tried to execute the warrant but
found the accused absconding. The same fact has been recorded
by the Police in the case diary on 06.04.2024 and thereafter on
05.06.2024.
7. It was in the said background that the Police
through the State submitted petition by returning the non-
bailable warrant against the accused, Ashok Thakur, Pawan
Thakur and Punita Kumari with further prayer to the Court to
pass an order for putting up the poster against the accused
persons under section 82 of the Cr. P.C.
8. On 20.06.2024, the Court accepted the said
prayer/petition of the Police and accordingly, an order was
passed. Learned counsel for the appellants upon query by the
Court whether they preferred anticipatory bail, it was submitted
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
4/20
that in the month of September, 2024, anticipatory bail was
preferred which was rejected by the concerned Court. Later, Cr.
Appeal (SJ) No. 4944 of 2024 was filed against the said order
by the appellants herein in which interim protection has been
granted on 30.10.2024 by the coordinate bench and is presently
pending before the learned Special Judge, (S.C & S.T. Act),
Madhubani.
9. Thereafter, the present petition has been filed by
the same set of accused persons challenging the order dated
10.06.2024.
10. It is the case of the appellants that from the order
dated 10.06.2024, it is not reflected that the non-bailable
warrant was returned to the Court whereafter having been
satisfied, the aforesaid order was passed. He submits that in that
background, interference is required.
11. Learned counsel for the appellants further
submitted that they are the resident under the jurisdiction of
Basopatti Police Station whereas the case has been lodged under
SC/ST Act and as such the Police in view of the section 79 of
the Cr.P.C. was required to take the police officials of Basopatti
Police Station in confidence before making a raid on their
house.
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
5/20
12. He has taken this Court to section 79 of the
Cr.P.C. which read as follows:
1.When a warrant directed to a police
officer is to be executed beyond the local
jurisdiction of the Court issuing the
same, he shall ordinarily take it for
endorsement either to an Executive
Magistrate or to a police officer not
below the rank of an officer-in-charge of
a police station, within the local limits of
whose jurisdiction the warrant is to be
executed.
2.Such Magistrate or police officer shall
endorse his name thereon and such
endorsement shall be sufficient authority
to the police officer to whom the warrant
is directed to execute the same, and the
local police shall, if so required, assist
such officer in executing such warrant.
3.Whenever there is reason to believe
that the delay occasioned by obtaining
the endorsement of the Magistrate or
police officer within whose local
jurisdiction the warrant is to be executed
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
6/20will prevent such execution, the police
officer whom it is directed may execute
the same without such endorsement in
any place beyond the local jurisdiction of
the Court which issued it.
13. It is his further submission that process required
under section 82 of the Cr.P.C. was not followed again by the
learned Court inasmuch his satisfaction is missing. In support
of his case, learned counsel for the appellants has drawn
attention of this Court to an order of learned Single Judge
(Sanjay Kumar vs. the State of Bihar & Anr.) as his Lordship
then was in Cr. Misc. No. 629 of 2018 with specific reference to
paragraph 23 which read as follows:
23. In Inder Mohan Goswami (supra)
as to when a поп bailable warrant of
arrest can be issued has been
succinctly set out by the Supreme
Court by emphasizing that arrest or
imprisonment means deprivation of
rights to individual and, thus, the
courts have to be extremely careful
before issuing non-bailable warrant of
arrest. In the said case, the Supreme
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
7/20Court observed-
“53. 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 placed
into custody immediately.
54. 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.
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
8/20The 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
55. 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
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
9/20avoiding the court’s proceeding
intentionally, the process of
issuance of the non bailable
warrant should be resorted to
Personal liberty paramount,
therefore, we caution courts at
the first and second instance to
refrain from issuing non-bailable
warrants.
56. The power being
discretionary must be exercised
judiciously with extreme care and
caution. The court should
properly balance both personal
liberty and social interest before
issuing warrants. There cannot
be any straight-jacket formula for
issuance of warrants but as a
general rule, unless an accused
charged with the commission of
as offence of a heinous crime and
is feared that he is likely to
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
10/20tamper or destroy the evidence or
is likely to evade the process of
low, issuance of non-bailable
warrants should be avoided.
57. 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.
14. However, learned counsel concedes that the order
relates to non-bailable warrant and not to section 82 of the
Cr.P.C. .
15. He has further drawn attention of this Court to
another learned Single Judge order (Ajeet Kumar vs. the State
of Bihar & Anr.) on 14.08.2024 in Cr. Misc. No. 66151 of
2023 with specific reference to sub paragraph 21 of paragraph
10 of the in which quoting Sanjay Kumar‘s case, the following
observation has been made.
21.In the present case, as seen
above, after issuance of summonses
there is no report that they were
served upon the accused persons
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
11/20
and in absence of service report of
the summonses, the court issued
warrants of arrest against the
accused persons. Further, in
absence of service report of
bailable warrants of arrest, the
court issued non- bailable warrants
of arrest against the accused
persons. Furthermore, there being
no report regarding service of
summonses, bailable warrants of
arrest and non-bailable warrants of
arrest and without expressing
satisfaction that the accused
persons are absconding or
concealing themselves, the learned
Magistrate passed order for
publishing a written proclamation
requiring the petitioner to appear
before the court and even without
satisfying himself as to whether
written proclamation was even
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
12/20
published again issued a composite
order under Section 82 and 83 of
the Cr.P.C.
16. Again it is the submission of the learned counsel
for the appellants that it relates to issuance of warrant after
summons were issued. Lastly, he has relied on the order of
learned Single Judge of Allahabad High Court (Pradeep
Agnihotri vs. the State of U.P. & Anr.) with specific reference
to paragraph-10 which read as follows:
10. The Apex Court in the case in
another vs. State of Uttaranchal and
others reported in (2007) 12 SCC 1
has observed the mechanism as to
how the liberty of any person may
be curtailed inasmuch as every
citizen has got fundamental right of
his liberty under Article 21 of the
Constitution of India. Such liberty
may be curtailed by the court
concerned if the court has got
specific and cogent reason and that
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
13/20reason must be mentioned while
issuing the proclamation order. The
relevant paras-53. 54. 55. 56 & 57
of the aforesaid case are being
reproduced here under:-
"When non-bailable warrants
should be issued.
53. 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 placed into
custody immediately.
54. As far as possible, if the court is
of the opinion that a summon will
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
14/20suffice in getting the appearance of
the accused in the court, the
summon or the hailable 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.
55 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
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
15/20warrant. 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.
56. 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
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
16/20he 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.
57. 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.”
17. It is his submission that the Court concerned
having not recorded the return of the warrant as also
satisfaction, the order is fit to be interfered with.
18. Learned Counsel for the State on the other hand
has again taken this Court to paragraph 121 of the case diary in
which it has been recorded that the non-bailable warrant against
the accused persons are being returned with a prayer to issue
order for affixing poster against them. He submits that though
the actual line may be missing in the order, it has to be read in
totality with the case diary where it is clear that the Police
returned the non-bailable warrant and made request for affixing
the poster on the house of the accused persons and as such in
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
17/20
that background, no case of the appellants is/are made out.
19. It is his further submission that the orders which
the learned counsel for the appellants has drawn attention of this
Court relates to issuance of summons and subsequently, the
warrant which in turn can not be compared with the present case
where it is clear from the facts that after the issuance of the
non-bailable warrant was issued by the Court, upon knowledge,
though some of the accused persons chose to surrender and take
bail, the present appellants chose to look the other way and the
Police after repeatedly raiding the house found them to be
absconding from their house, in that background, when the case
diary records that non-bailable warrants is/are returned with
prayer for the issuance of an order for affixing the poster
against the accused persons, there is no illegality in the said
order.
20. So far as the respondent no.2 represented by his
lawyer is concerned, the submission is that despite the
occurrence having taken place two years ago with the specific
allegation against appellant no.1 Ashok Thakur that he put a
towel around the neck of the victim to choke his respiration,
successfully evaded arrest and now despite getting interim
protection granted in belated anticipatory bail application wants
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
18/20
to stable the proceeding.
21. Having gone through the facts of the case as also
the material on record and the submissions put forward herein,
this Court finds force in the submission put forward by the
learned Counsel for the State as also learned Counsel for the
respondent no.2. The facts will always get priority in such
cases. The fact remains that an FIR came to be lodged on
10.06.2023 with specific allegations, the appellants chose not to
take recourse to the legal remedy, much later, arrest warrant
came to be issued. Immediately, the other accused persons
surrendered and took bail, dates of which have already been
recorded above.
22. The appellants specially appellant no.1 against
whom specific allegation has been made however, chose to look
other way. It is not his case that he alongwith the other two
appellants immediately went for anticipatory bail and upon
rejection moved this Court for grant of relief. It was only after
the Police failed to arrest them, petition was filed after returning
the non-bailable warrant, the appellants came out of deep
slumber and two different petitions have been filed, one after
rejection of their anticipatory bail by the court concerned
through Cr. Appeal No. 4944 of 2024 for anticipatory bail as
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
19/20
stated above in which they are under interim protection as also
the present appeal.
23. So far as the orders passed by the different learned
Single Benches of Patna High Court as well as Allahabad High
Court are concerned, learned State counsel rightly pointed out
that the same relates to summon/warrant and the facts of the
said case in no way matches the present case where different
dates clearly show that the Police took recourse to all the
remedy and only after passage of one year and when the
appellants chose not to seek any legal remedy while evading
arrest, went for the issuance of process under section 82 of the
Cr.P.C. after returning the arrest warrants which was granted.
24. Though the Court concerned should have been
cautious in recording certain facts which is mandated under
section 82 of the Cr.P.C., that cannot be a ground to set aside the
said order when it is seen in totality and particularly when the
appellants remained in deep slumber for a long period.
25. In that background, this Court is of the opinion
that no case of interference is made out in the present petition. It
is accordingly rejected. The interim protection granted dated
23.10.2024 stands vacated.
26. So far as the appearance of the Aman Kumar
Patna High Court CR. APP (SJ) No.4228 of 2024 dt.20-01-2025
20/20
Singh, Sub Inspector of Police with the SC/ST Police Station,
Madhubani is concerned, according to him, he has joined only
on 15.12.2024 and immediately after he came to know about the
present order, has presented himself. In that background, after
cautioning him to be careful in future, his appearance stands
dispensed with.
27. The petition is dismissed. Let a copy of the order
be sent to the concerned Court in connection with G.R. No. 77
of 2023/S.C. & S.T. P.S. Case No. 38 of 2023 pending before
the learned Special Judge (SC & ST Act), Madhubani.
(Rajiv Roy, J)
Ravi/-
AFR/NAFR AFR CAV DATE NA Uploading Date Transmission Date
[ad_1]
Source link