Magistrate Cannot Issue A Non-Bailable Warrant Of Arrest Without Execution Report Of Bailable Warrant: Jharkhand HC

The Court explained that the issuing court must record its satisfaction that the accused was absconding or concealing to evade arrest before making a proclamation under Section 82 of Cr.P.C. The Bench clarified that the order must specify the time and place for the accused's appearance when issuing such a proclamation.

A Single Bench of Justice Anil Kumar Choudhary observed, “Perusal of the record reveals that though bailable warrant of arrest was issued against the petitioner but without the execution report of such bailable warrant of arrest, the learned Magistrate has issued non-bailable warrant of arrest which is also not sustainable in law because it is a settled principle of law that the learned Magistrate having once issued the bailable warrant of arrest, ought to have ensured that the execution report of such bailable warrant of arrest is received, before taking any further coercive action, like to issue nonbailable warrant of arrest.”

Advocate Rohit Ranjan Sinha represented the petitioner, while Spl. P.P. P.D. Agrawal appeared for the opposite parties.

The petitioner had filed a petition under Section 482 of the CrPC to quash the entire criminal proceeding with all consequential orders including the order by which the respective Magistrates took cognizance of the offences punishable under Sections 341 and 323 of the IPC.

The Magistrates had issued a bailable warrant of arrest, non-bailable warrant of arrest, proclamation under Section 82 of the Cr.P.C., order for attachment of the property of the petitioner under Section 83 of the Cr.P.C. and the order by which the petitioner has been declared an absconder and a permanent warrant of arrest was issued under Section 299 of the Cr.P.C.

The petitioner submitted that the Magistrate should not have issued a bailable warrant of arrest without the service of the summons issued to the petitioner being served upon him or the service report of such summons received by the court concerned. Similarly, the Magistrate should not have issued a non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C. and the attachment order of the property under Section 83 Cr.P.C. without any material in the record to show that the respective processes had ever been executed.

The Court explained that “it is evident from the record that service report of the summon issued to the petitioner, who was on bail during the investigation of the case, has not been received so in the absence of any material to suggest that summons which was issued by the learned Magistrate concerned, itself having not been served certainly, the learned Magistrate committed a grave illegality by issuing the bailable warrant of arrest.”

“Court which issues the proclamation under Section 82 of Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of Cr.P.C. it must mention the time and place for appearance of the petitioner in the order itself, by which the proclamation under Section 82 of Cr.P.C. is issued,” the Court stated.

Consequently, the Court held that the prayer for quashing the entire criminal proceeding on the ground of compromise was not maintainable since both offences were compoundable in nature.

Accordingly, the High quashed both the orders of the magistrate and allowed the petition.

Cause Title: Vishal Kumar v. The State of Jharkhand & Anr.

Appearance:

Petitioner: Advocate Rohit Ranjan Sinha

Opposite Parties: Spl. P.P. P.D. Agrawal; Advocate Akchansh Kishore

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