Sanjay K. Agrawal, J
1. Apprehending arrest in connection with Criminal Complaint Case No.6398/2017 pending in the Court of Judicial Magistrate First Class, Durg,
registered at Police Station Khursipar, Bhilai, Distt. Durg, for the offence punishable under Sections 120B, 420, 467 and 468 of the IPC, the applicant
has filed this application under Section 438 of the CrPC for grant of anticipatory bail.
2. In a criminal complaint filed by non-applicant No.2 herein, offence under Sections 120B, 420, 467 and 468 of the IPC was registered at Police
Station Khursipar, Bhilai, Distt. Durg, against the applicant in which warrant of arrest has been issued against him.
3. Learned Senior Counsel appearing for the applicant submits that offence has been registered against the applicant on 22-7-2017 and summons were
issued which received unserved and thereafter, bailable warrant was issued which also received unserved and straightway, warrant of arrest has been
issued which is contrary to the well settled law in this regard. Only in case of service of summons and bailable warrant, if accused remains
absconding, then only non- bailable warrant would be issued.
4. Learned State counsel and learned counsel for the complainant / non- applicant No.2 would oppose the application.
5. I have heard learned counsel for the parties and perused the material available on record.
6. Way back, in the year 1976, Their Lordships of the Supreme Court in a Constitution Bench decision in the matter of State of U.P. v. Poosu and
another 1976 (3) SCC 1 had an occasion to consider the question of securing the attendance of accused person while granting special leave against an
order of acquittal by holding as under:
Broadly speaking, the Court would take into account the various factors such as, ""the nature and seriousness of the offence, the character of the
evidence, circumstances peculiar to the accused, possibility of his absconding, tampering with evidence, larger interest of the public and State. (See
The State v. Capt. Jagjit Singh (AIR 1962-SC 253).
7. In the matter of Inder Mohan Goswami and another v. State of Uttaranchal and others  2007 (12) SCC 1  Their Lordships of the Supreme
Court have held in unmistakable terms that issuance of non-bailable warrants actually interferes with personal liberty and therefore courts have to be
extremely careful before issuing non-bailable warrant and laid down the principles, when non-bailable warrants should be issued which state as under :
Non-bailable warrants should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result.
This could be when:
* it is reasonable to believe that the person will not voluntarily appear in court;
* the police authorities are unable to find the person to serve him with a summon;
* it is considered that the person could harm someone if not placed into custody immediately.
In the later part of judgment, Their Lordships cautioned the criminal court to refrain from issuing non-bailable warrant of arrest at first instance by
directing as under :
In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to
be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the
accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is
paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
Their Lordships while concluding, emphasized the need of striking proper balance between individual personal liberty and societal interest/interest of
public before issuing warrant by making following pertinent observation:
The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty
and societal interest before issuing warrants. There cannot be any straight- jacket formula for issuance of warrants but as a general rule, unless an
accused is charged with the commission of an offence of a heinous crime and it is feared that he 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.
8. In the matter of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another 2012 (9) SCC 791, it has been held that power and
jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one
hand and the protection of citizen from highhandedness at the hands of the law enforcement agencies on the other. Paragraph of report states as
under :
Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a
bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from
highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant
against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be
exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the
accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr.)
9. In the matter of Vikas v. State of Rajasthan  2014 (3) SCC 321, wherein the trial court while granting an application under Section 319 of the
Cr.P.C., directly issued non-bailable warrant for securing attendance of accused, which was affirmed by the High Court, setting aside order of trial
court and High Court and emphasizing the need to secure the attendance of accused by first issuing summons/bailable warrant, Their Lordships of the
Supreme Court held as under :
.....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 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.
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.....
10. Bearing in mind the statutory provision contained in sub-section (2) of Section 319 of the CrPC and judged by the principles of law laid down by
Their Lordships of the Supreme Court in above-stated cases (supra), it would appear that power and jurisdiction of trial court to issue appropriate
warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty
guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should
first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable
warrant of arrest should be issued to secure the presence of the accused person.
11.In the instant case, the fact remains that summon and bailable warrant issued to the applicant remained unserved and thereafter, straightway, non-
bailable warrant could not have been issued to the applicant in light of the principles of law enunciated by the Supreme Court in the aforesaid decisions
(supra). In view of the above, I am of the opinion that it is a fit case in which the applicant should be granted anticipatory bail. Accordingly, the
application is allowed.
12. It is, therefore, directed that in the event of arrest of the applicant in connection with the aforesaid offence, he shall be released on bail by the trial
Court on his executing a personal bond in the sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the concerned trial Court. The
applicant shall also abide by the following conditions: -
1. He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or to any police officer.
2. He shall not act, in any manner, which will be prejudicial to fair and expeditious trial.
3. He shall also appear before the trial Court on each and every date given to him by the said Court till disposal of the trial.
