Read Time: 08 minutes

The Allahabad High Court recently held that in the order where the bailable/ non-bailable warrant or proclamation under Section 82 of the Code of Criminal Procedure (Cr.P.C.) is issued, the issuing court must indicate that despite the service of summons or bailable warrant or non-bailable warrant the accused has not appeared.

The bench of Justice Rajesh Singh Chauhan held that in the absence of such indication the coercive orders i.e. non-bailable warrant etc. would be treated as if they failed the test of statutory prescriptions prescribed under Sections 64 & 65 of the Cr.P.C.

(Section 64 of CrPC provides for the method of service of summons when persons summoned cannot be found and section 65 provides for the procedure to be adopted if service of summons cannot, by the exercise of due diligence, be effected as provided in section 62, section 63 or section 64 of the Code.)

The court was dealing with a petition praying for quashing the charge-sheet as well as the summoning order and non-bailable warrant issued by the Additional Session Judge/ Special Judge against the petitioners. 

The petitioners had alleged that as per the charge-sheet itself, the police had granted them bail, and accordingly, they had not been arrested. They had also asserted that they had been fully cooperating with the investigation too as the case against them was merely a counter blast being a cross case.

Therefore, they had argued that Additional Session Judge's order issuing the non-bailable warrant against them was in violation of section 65 of the Cr.P.C. as in the order the court had not indicated the subjective satisfaction as to whether the bailable warrant had been served upon the petitioners or not.

They had also submitted that the law is clear that if despite the service of a bailable warrant upon the accused person, he/ she does not appear, only then the non-bailable warrant may be issued.

Lastly, petitioner's counsel had also contended that since the petitioners had never been arrested during investigation and had co-operated with the investigation, therefore, they should not be taken into custody after filing of the charge-sheet.

In view of the facts and circumstances of the case, the court said that the lower court should act in the light of dictum of the Apex court in re: Satender Kumar Antil Vs. Central Bureau of Investigation & Anr (2021) and in re; Aman Preet Singh vs. C.B.I. through Director (2021), wherein the guideline was formulated that if any accused person has not been arrested during investigation and has cooperated with the investigation, there is no need to arrest him after filing charge sheet, particularly, if the nature of offences is not so serious.

Court also noted that in Joginder Kumar vs. State of U.P. & Ors, (1994) as well, the Supreme Court has ruled that the arrest is not mandatory in all cases and if the accused person is cooperating with the investigation, there is no need to arrest.

Noting thus, for the purpose of disposing of the instant petition, court ordered that the petitioners may appear before the court below within a period of four weeks from the date of the order and file an appropriate application. 

Court directed that if the petitioners appear before the court below within the aforesaid stipulated time in terms of this order and move appropriate application, the court below shall consider and decide the same expeditiously, if possible on the same day strictly in accordance with law and in the light of dictum of the Apex Court (as mentioned above). 

Importantly, court ordered that till the disposal of such application of the petitioners, the non-bailable warrant shall not be executed against them. 

However, court also added that in case the petitioners do not file the application within four weeks, as aforesaid, the benefit of this order may not be given to them and the court below would be at liberty to take appropriate coercive steps, as per law.

Case Title: Praveen Kumar Singh @ Praveen Singh & Others v. - State Of U.P. Thru. Prin. Secy. Home. Lko & Others