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Radhakrishnan v. State of Kerala

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Code of Criminal Procedure, 1973 – the grievance of the petitioners is that non bailable warrants have been issued against them straight away, without issuing summons – As a matter of fact, the petitioners have been shown as absconding, so that there is nothing wrong in issuing warrant against the accused persons. Section 87 and also Section 204(1) (b) of the Cr.P.C enable the learned Magistrate to issue warrant against the accused person straight away, without issuing summons.

Code of Criminal Procedure, 1973 – Merely for the reason that they were absconding during the period of investigation, after filing the final report unless reasons are recorded, warrant of arrest cannot be issued. Such warrants cannot be issued mechanically. Here, it does not seem that warrants were issued after due application of mind.

Citations : (2021) 9 KCC 316 : 2021 (5) KHC 623


ICL 2021 (9) Ker. 546
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. HARIPAL, J.
CRL.MC NO. 3832 OF 2021; 24 SEPTEMBER 2021
(To quash the order dated 31.12.2020 passed by the court of judicial first class magistrate, Irinjalakkuda, Thrissur District in C.C. No.3950/2020 on its files, directing the issuance of NBW to the petitioners at the first instance, forming part of annexure 4 proceedings of the court below).
RADHAKRISHNAN v. STATE OF KERALA

Petitioners / Accused Nos.1 & 2: By Advs. Thomas J. Anakkallunkal, Abishek Johny; Respondent / State:  Represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031. Sr. PP – Sri. Noushad

O R D E R

Petitioners are the accused in C.C.No.3950/2020 pending before the Judicial First Class Magistrate Court, Irinjalakuda, which was taken on file based on the final report in Crime No.1273/2020 of Irinjalakuda Police Station. Offence punishable under Sections 448, 341 and 326 read with Section 34 of the IPC is alleged against the petitioners who are father and son.

2. The learned counsel for the petitioners submits that the name of the first petitioner was not in the FIR and when the accused in the FIR had moved an application for anticipatory bail, it was informed that the first accused in the FIR, that is Jishnu, is not an accused. Recording that submission, the bail application was disposed. Now, after laying the charge sheet, the grievance of the petitioners is that non bailable warrants have been issued against them straight away, without issuing summons.

3. Heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

4. As a matter of fact, the petitioners have been shown as absconding, so that there is nothing wrong in issuing warrant against the accused persons. Section 87 and also Section 204(1) (b) of the Cr.P.C enable the learned Magistrate to issue warrant against the accused person straight away, without issuing summons.

5. Whatever it may be, after laying of final report and also in the light of the allegation in the charge sheet, it is very patent that the detention of the petitioners is not necessary. Merely for the reason that they were absconding during the period of investigation, after filing the final report unless reasons are recorded, warrant of arrest cannot be issued. In this connection, the following direction of the Hon’ble Apex Court in Aman Preet Singh v. CBI Through Director [MANU/SC/0599/2020-21] is liable to be followed:

“…………….. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. ……”

Such warrants cannot be issued mechanically. Here, it does not seem that warrants were issued after due application of mind.

Therefore, non bailable warrant issued against the petitioners shall be kept in abeyance. The petitioners shall be at liberty to surrender before the learned Magistrate. In the event of surrendering, the learned Magistrate shall grant them bail imposing appropriate conditions. The Crl.M.C is allowed as above.

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