VIKASversusSTATE OF RAJASTHAN

                        [2013] 8 S.C.R. 208


A                               VIKAS
                                  v.
                      STATE OF RAJASTHAN
                (Criminal Appeal No. 1190 of 2013)
                         AUGUST 16, 2013
B
               [H.L. DATTU AND M.Y. EQBAL, JJ.]

          Code of Criminal Procedure, 1973 - s.319 - Abduction
    of girl - Three accused - PW4 filed application uls.319 CrPC
C   for trial of appellant alongwith other accused persons - Trial
    Court took cognizance and summoned appellant through
    issuance of non-bailable warrant - Appellant filed application
    for converting the non-bailable warrant into bailable warrant -
    Trial Court rejected the application - Order confirmed by High
D   Court - Whether the attendance of appellant could have been
    best secured by issuing a summon simplicitor or a bailable
    warrant instead of a non-bailable warrant in an app/icatfon u/
    s.319 CrPC - Held: s.319 CrPC demands more
    circumspection by the Trial Court while exercising its powers
E   since it confers an extraordinary power and should be used
    by the court very sparingly thereby ensuring that principles
    of rule of law and basic tenets of criminal law jurisprudence
    are not vitiated - Issuance of non-bailable warrant in the first
    instance without using the other tools of summons and
F   bailable warrant to secure attendance of appellant impaired
    his personal liberty - Non-bailable warrant should be issued
    to bring a person to court when summons or bailable warrants
    would be unlikely to have the desired result - The court in all
    circumstances in complaint cases at the first instance should
G   first prefer issuing summons or bailable warrant failing which
    a non-bailable warrant should be issued - Direction given that
    summons be issued against the appellant for his appearance
    instead of non-bailable warrant - Penal Code, 1860 - ss. 363,
    366 and 376.

H                                 208
           VIKAS v. STATE OF RAJASTHAN                       209


     lnder Mohan Goswami; 2007 12 SCC 1: 2007 (10) SCR             A
847; Raghuvansh Dewanchand Bhasin vs. State of
Maharashtra and Anr. (2012) 9 SCC 791: 2007 (10) SCR 847
Sf?te of U. P. vs. Poosu and Anr; 1976 3 SCC 1: 1976 (3)
~CR 1005 - referred to.
                                                                   B
                     Case Law Reference:
    2007 (10) SCR 847          referred to         Para 14
   -2007 (10) SCR 847           referred to        Para 14
    .1976 (3) SCR 1005         referred to         Para 15         c
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1190 of 2013.

    From the Judgment and Order dated 04.04.2013 of the
High-Court of Judicature for Rajasthan, Bench at Jaipur, in S.B.   D
Cni™rial Misc. Petition No. 1080 of 2013.

      Sushil K. Jain, Puneet Jain, Anas M. Riyaz, Pratibha Jain
for the Appellant.
                                                                   E
    Dr. Manish Singhvi, AAG, lrshad Ahmad for the
Respondent.

    The following order of the Court was delivered

                            ORDER                                  F
    1. Leave granted.

      2. This appeal is directed against the order passed by the
High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur
in S.B. Criminal Misc. Petition No. 1080 of 2013 dated 4th         G
April, 2013, whereby the High Court has dismissed the petition
filed by the appellant under section 482 of Criminal Procedure
~de, 1973 (for short, "the Cr.P.C.").

    3. The Facts in brief are: - The incident occurred on          H
    210       SUPREME COURT REPORTS               (2013] 8 S.C.R.


A 01.12.2011 at about 4.00 a.m. PW-4, the complainant had
  lodged an FIR before the Police Station at Singhana, District
  Jhunjhunu to the effect that PW5, the daughter of the
  Complainant, Sonu was abducted by the accused persons
  namely Deshram, Vikash, Ravi Kumar and Amit Kumar. On the
8 fateful day, PW-5, had gone out of her house, when the
  appellant along with the other accused persons hatched a
  conspiracy to forcibly abduct her and in pursuance of the same
  abducted PW-5.

       4. The FIR was registered and after completion of the
C investigation, the investigating agency had filed a charge-sheet
  against the accused, Amit Kumar (A1) for the offences under
  Sections 363, 366 and 376 of Indian Penal Code ("the IPC"
  for short) and Ravi Kumar (A2) and Ajit (A3) for the offences
  under Sections 363, 366(A) and 1208 of the IPC. The Trial
D Court, thereafter, commenced with the trial against A 1, A2 and
  A3 respectively.                               ·

       5. During the course of trial, the Trial Court appreciated
  the evidence available on record and framed charges against
E A 1 under Sections 363, 366 and 376 and under Sections 363,
  366(A) and 1208 of the IPC against A2. Thereafter, PW4, filed
  an application before: the Trial Court under Section 319 of the
  Cr.P.C. for the trial of the appellant along with the other accused
  persons for having been involved in the commission of the
F offence.

       6. The Trial Court placing reliance on the evidence
  produced in the course of the trial has come to the conclusion
  that the court is satisfied that the appellant has committed an
  offence for which the appellant can be tried along with the other
G accused persons and therefore had taken cognizance for the
  offences under Sections 363, 366(A), 1208 and 376(2)(g) of
  the IPC against the appellant herein and were summoned
  through an issuance of a non-bailable warrant.

H         7. Being aggrieved by the issuance of the non-bailable
           VIKAS v. STATE OF RAJASTHAN                        211


warrant, the appellant filed an application before the Trial Court   A
for converting the non-bailable warrant into bailable warrant. The
Trial Court, by its order dated 04.03.13 rejected the application
of the appellant.

     8. Aggrieved by the order of the Trial Court, the appellant
                                                                     B
had filed an appeal before the High Court. The High Court after
re-consideration confirmed the order of the Trial Court.

     9. It is the correctness or otherwise of the judgment and
order passed by the High Court which is called in question by
the appellant in this appeal.                                        c
     10. Heard learned counsel for the parties to the lis.

    11. The learned counsel appearing for the appellant, would
submit that the Trial Court, to seek attendance of the appellant
and the .other accused persons had issued non-bailable               D
warrants instead of bailable warrants which was not justified.

    12. The only question for consideration before us is
whether in the circumstances of the case, the attendance of the
appellant could have been best secured by issuing a summon           E
simplicitor or a bailable warrant instead of a non-bailable
warrant in an application under Section 319 of the Cr.P.C.

      13. A Perusal of Section 319 of the Cr.P.C. would clearly
indicate that on the objective satisfaction of the court a person
may be 'arrested' or 'summoned' as the circumstances of the          F
case may require if it appears from the evidence that any such
person not being the accused has committed an offence for
which such person could be tried together with the already
arraigned accused persons. The court should exercise judicial
discretion on a consideration of the totality of the facts and       G
circumstances of a given case and in a manner where proper
procedures are followed that are fundamental to the right of fair
trial of the accused. The section demands more circumspection
by the Trial Court while exercising its powers since it confers
                                                                     H
    212       SUPREME COURT REPORTS              [2013] 8 S.C.R.


A   an extraordinary power and should be used by the court very
    sparingly thereby ensuring that principles of rule of law and
    basic tenets of criminal law jurisprudence are not vitiated.

          14. The Constitution of India is the grundnorm- the
    paramount law of the country. All other laws derive their origin
8   and are supplementary and incidental to the principles laid ·
    down in the Constitution. Therefore, Criminal Law also derives
    its source and sustenance from the Constitution. The
    Constitution, on one hand, guarantees the Right to Life and
    Liberty to its citizens under Article 21 and on the other hand
C   imposes a duty and an obligation on the Judges while
    discharging their judicial function to protect and promote the
    liberty of the citizens. The issuance of non-bailable warrant in
    the first instance without using the other tools of summons and
    bailable warrant to secure attendance of such a person would
D   impair the personal liberty guaranteed to every citizen under the
    Constitution. This position is settled in the case of lnder Mohan
    Goswami; 2007 12 SCC 1 and in the case of Raghuvansh
    Dewanchand Bhasin vs. State of Maharashtra and Anr;
    (2012) 9 sec 791 wherein it has been observed that personal
E   liberty and the interest of the State Civilized countries is the
    most precious of all the human rights. The American
    Declaration of Independence 1776, French Declaration of the
    Rights of Men and the Citizen 1789, Universal Declaration of
    Human Rights and the International Covenant of Civil and
F   Political Rights 1966 all speak with one voice - liberty is the
    natural and inalienable right of every human being. Similarly,
    Article 21 of our Constitution proclaims that no one shall be
    deprived of his liberty except in accordance with the procedure
    prescribed by law. The issuance of non-bailable warrant
G   involves interference with personal liberty. Arrest and
    imprisonment means deprivation of the most precious right of
    an individual. Therefore, this demands that the courts have to
    be extremely careful before issuing non-bailable warrants.

          15. In order to examine the reasoning of the Trial Court,
H
           VIKAS v. STATE OF RAJASTHAN                        213


the case is-to be understood in its own facts and circumstances.      A
In the instant case, the Trial Court after appreciating the
evidence available had reasonable satisfaction from the
evidence already collected during the trial that the appellant had
committed an offence along with the other accused who had
undergone the Trial and therefore issued a non-bailable warrant       B
to seek the attendance of the appellant-herein under an
application of Section 319 of the Cr.P.C. To appreciate the
present case, it is pertinent to discuss the meaning of 'bailable
offences' and 'non-bailable offences' and the circumstances in
which a non-bailable warrant can be issued. In the legislative        c
history for the purposes of bail, the term 'bailable' and 'non-
bailable' are mostly used to formally distinguish one of the two
classes of cases, viz. 'bailable' offences in which bail may be
claimed as a right in every case whereas the question of grant
of bail in non- bailable offences to such a person is left by the     D
legislature in the court's discretion to be exercised on a
consideration of the totality of the facts and circumstances of
a given case. The discretion has, of course, to be a judicial one
informed by tradition methodized by analogy, disciplined by
system and sub-ordinated to the primordial necessity of order
                                                                      E
in social life. Another such instance of judicial discretion is the
issue of non-bailable warrant in a complaint case under an
application of Section 319 of the Cr.P.C. The power under
Section 319 of the Cr.P.C being discretionary must be
exercised judiciously with extreme care and caution. The court
should properly balance both personal liberty and societal            F
interest before issuing warrants. There cannot be any straight-
jacket formula for issuance of warrants but as a general rule,
unless an accused 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. The conditions for the issuance           G
of non-bailable warrant are re-iterated in the case of lnder
 Mohan Goswami (Supra) and in the case of State of U.P. vs.
Poosu and Anr; 1976 3 SCC 1, wherein it is mentioned that
 Non-bailable warrant should be issued to bring a person to
 court when summons or bailable warrants would be unlikely to         H
    214       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A have the desired result. This could be when firstly it is
  reasonable to believe that the person will not voluntarily appear
  in court; or secondly that the police authorities are unable to
  find the person to serve him with a summon and thirdly if it is
  considered that the person could harm someone if not placed
B into custody immediately. In the absence of the aforesaid
  reasons, the issue of non-bailable warrant a fortiori to the
  application under Section 319 of the Cr.P.C. would extinguish
  the very purpose of existence of procedural laws which preserve
  and protect the right of an accused in a trial of a case.
c         16. The court in all circumstances in complaint cases at
    the first instance should first prefer issuing summons or bailable
    warrant failing which a non-bailable warrant should be issued.

       17. In view of the above, we modify the orders passed by
D the Trial Court and confirmed by the High Court, and direct that
  summons be issued against the appellant for his appearance
  instead of non-bailable warrants which were ordered to be
  issued against him.

          18. The Criminal appeal is disposed of accordingly.
E
          Ordered accordingly.

    B.B.B.                                     Appeal disposed of.