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Patna High Court

HIRA SINGHversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.18419 of 2021(4) dt.07-01-2026
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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
             Patna High Court CR. MISC. No.18419 of 2021(4) dt.07-01-2026
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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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