Patna High Court
HIRA SINGHversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SONI SHRIVASTAVA
Holding
The non‑bailable warrants and the orders dated 17‑06‑2019 and 03‑01‑2020 are illegal and are set aside.
Summary
The petitioners, who were granted bail in a case involving offences under Sections 341, 323, 325, 504/34 IPC, challenged the issuance of bailable and later non‑bailable warrants against them after the victim died and the charge‑sheet was amended to include Section 302 IPC. They argued that the warrants were illegal because their bail bonds had never been cancelled and no execution report of the earlier bailable warrant was produced. The respondent contended that the magistrate was empowered under Section 204(b) of the CrPC to issue such warrants. The High Court held that issuing non‑bailable warrants against persons already on bail interferes with personal liberty and is unjustified absent a cancellation of bail, and that the magistrate’s discretion must be exercised judiciously. Consequently, the orders dated 17‑06‑2019 and 03‑01‑2020 were set aside and the petition for quashing was allowed.
Issues considered
- Whether a non‑bailable warrant can be issued against an accused who is already on bail and whose bail bond has not been cancelled.
- Whether the magistrate was within his jurisdiction under Section 204(b) of the CrPC to issue a non‑bailable warrant without an execution report of the earlier bailable warrant.
- Whether the orders of the Judicial Magistrate and the Revisional Court can be quashed on the ground of illegality.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 204(b)
- Indian Penal Code — s. 302, 323, 325, 341, 504/34
Subjects
- non‑bailable warrant
- bail
- quashing of order
- personal liberty
- CrPC Section 204(b)
- jurisdiction
- magistrate discretion
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.18419 of 2021
Arising Out of PS. Case No.-169 Year-2017 Thana- SANDESH District- Bhojpur
======================================================
1. Hira Singh Son Of Late Bifen Singh Resident Of Village - Saraiya, P.S.-
Sandesh, Distt.- Bhojpur.
2. Manu Devi W/O Hira Singh Resident Of Village - Saraiya, P.S.- Sandesh,
Distt.- Bhojpur.
3. Vicky Singh Son Of Hira Singh Resident Of Village - Saraiya, P.S.-
Sandesh, Distt.- Bhojpur.
4. Pramod Kumar Son Of Hira Singh Resident Of Village - Saraiya, P.S.-
Sandesh, Distt.- Bhojpur.
5. Akash Singh Son Of Hira Singh Resident Of Village - Saraiya, P.S.-
Sandesh, Distt.- Bhojpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. SAVITA DEVI W/o Jai Prakash Saw Resident of Village - Saraiya, P.S.-
Sandesh, Distt.- Bhojpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ashhar Mustafa, Adv.
Mr. Vikash Kumar, Adv.
Mrs. Anita Kumari, Adv
Mr. Sudhanshu Bhushan, Adv.
For the Informant Mr. Shiv Prasad Gupta, Adv.
For the State Mr. Ram Priya Sharan Singh, APP.
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
4 07-01-2026 Heard learned counsel for the petitioners, learned
counsel for the opposite party no. 2 and learned APP for the
State.
2. The present application has been filed for quashing
of the order dated 03.01.2020 passed by the learned District and
Sessions Judge, Bhojpur (Ara) in Cr. Revision No. 110 of 2019
as also the order dated 17.06.2019 passed by the learned Judicial
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Magistrate, 1st Class in connection with Sandesh P.S. Case No.
69 of 2017, whereby and whereunder the learned Magistrate has
ordered to issue non-bailable warrant of arrest against the
petitioners.
3. The background of the case is that initially the FIR
was lodged under Sections 341, 323, 325, 504/34 of the Indian
Penal Code against the present petitioners on 01.11.2017 and the
petitioners were granted the privilege of bail by an order dated
14.11.2017. The victim/injured of the case died during the
course of treatment on 19.12.2017 and subsequently after
investigation, charge-sheet was submitted by adding Section
302 of the IPC whereafter cognizance was also taken by an
order dated 09.04.2019 under Sections 341, 323, 325, 302,
504/34 of the IPC in the case and the cognizance order would
show that directly bailable warrants have been ordered to be
issued against all the accused persons. The order-sheet which
has been brought on record would further indicate that on the
next date i.e. on 25.05.2019, the execution report of the bailable
warrant was awaited and a further date of 17.06.2019 was given
for appearance and subsequently on 17.06.2019, non-bailable
warrants were issued against the petitioners.
4. The submission made on behalf of the learned
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counsel for the petitioners is two fold-one being that despite the
fact that the petitioners were on bail by an order dated
14.11.2017 and never misused the privilege of bail and their bail
bonds never having been cancelled, yet, bailable and non-
bailable warrants were issued against the petitioners for which
there was no occasion an is hence, per se, illegal. The second
contention raised on behalf of the petitioners is that the order
dated 17.06.2019 issuing non-bailable warrant against the
petitioners was passed in absence of any report of the execution
of the earlier order of issuance of bailable warrants which would
be clearly evident from a perusal of the order-sheet of the court
of the learned Judicial Magistrate 1st class, Ara (Bhojpur).
5. Learned counsel for the opposite party no. 2, per
contra, submits that the Magistrate is within his jurisdiction to
issue a warrant for causing the accused to be brought or to
appear at a certain time before the Magistrate and he makes a
reference to Section 204 (b) of Cr.P.C. laying down such law. In
such view of the matter, it has been submitted that no illegality
has been committed by either the learned court of the Magistrate
or the Revisional Court in issuance of non-bailable warrants and
by upholding the said order of issuance of the non-bailable
warrant.
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6. It is a settled position of law that the issuance of
non-bailable warrants involves interference with personal liberty
and the courts have to be extremely careful before issuing non-
bailable warrants as they amount to deprivation of most
precious right of an individual. Therefore, as far as possible, in
case the summons can suffice getting the appearance of the
accused before the Court, the same ought to be preferred instead
of issuance of warrants as it has been clearly held in the case of
Inder Mohan Goswami Vs. State of Uttaranchal reported in
(2008) 1 SCC (Cri) 259 and in the case of R.D. Bhasin Vs.
State of Maharashtra reported in 2012 (9) SCC 791 that
issuance of warrants have extremely serious consequences and
ramifications and hence, courts must be very careful in the
issuance of the same. This Court is further of the view that when
the petitioners of this case were already enjoying the privilege
of bail and their bail bonds had never been cancelled, there was
never any occasion of issuance of warrants and thus, I do not
find any force in the submission of the learned counsel for the
opposite party no. 2 stating that the Magistrate concerned was
well within his jurisdiction to issue warrants. The issuance of
warrants would depend on the facts and circumstances of a case
and such discretion with regard to issuance of warrant or a
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summon has to be exercised judiciously. In any view of the
matter, in the facts of the present case, there is no question of
exercising such discretion as the petitioners were already
enjoying the privilege of bail, had never misused the said
privilege and also in the particular condition when their bail
bonds were never cancelled, as such, issuance of warrants do
not have any legal justification.
7. Taking all these facts and circumstances into
consideration, this Court is of the view that the impugned orders
dated 17.06.2019 and 03.01.2020 cannot be legally sustained
and are fit to be set aside.
8. Accordingly, the present application for quashing is
allowed.
(Soni Shrivastava, J)
devendra/-
U T
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