In a recent judgment¹, the Hon’ble Apex Court cautioned against the routine issuance of non bailable warrants. Three appeals at hand were filed before the Hon’ble Bench of Justice Sanjiv Khanna and Justice S.V. N. Bhatti concerning a similar question of law with respect to the nature of chargesheets filed in some jurisdictions by the State. Reversing the findings of the Hon’ble High Courts, the Hon’ble Bench observed that the non-bailable warrants issued against the Appellants were unsustainable and should be quashed.

Facts of the First Appeal - Appeal arising out of SLP (Crl.) No. 1074 of 2017
In the first appeal², the Appellants were involved in a dispute over the ownership of a property located in Delhi. A First Information Report (“FIR”) was filed against the Appellants alleging criminal breach of trust and criminal intimidation. The FIR stated that the Appellants had agreed to sell the said property to the Respondent No. 2 and had received part payment of the consideration. However, it was alleged that the Appellants did not register the said property and also failed to refund the amount to the Respondent No. 2. Thereafter a chargesheet was filed against the Appellants. The Appellants approached the Hon’ble Allahabad High Court seeking the quashing of the chargesheet and the proceedings. The submissions of the Appellants were that the chargesheet was vague and was filed without proper investigation and failed to make out any offence against the Appellants. The Hon’ble Allahabad High Court dismissed the application for quashing of the chargesheet and thereafter the Appellants filed the present appeal.

Facts of the Second Appeal - Appeal arising out of SLP (Crl.) No. 5419 of 2022
In the second appeal³, the Appellant was arraigned as an accused for the offences under Section 420 read with Section 120B of the Indian Penal Code, 1860. By an Order dated 19.09.2019, the Hon’ble High Court partly allowed the Appellant’s anticipatory bail application and directed the police not to arrest the Appellant until the filing of the chargesheet. On 18.10.2019, chargesheet was filed alleging that the charges under Section 420 read with Section 120B of the Indian Penal Code, 1860 are established. By an Order dated 10.05.2021, the Hon’ble Allahabad High Court granted interim anticipatory bail to the Appellant till 03.01.2022 and observed that the Appellant may approach the Hon’ble Court again in case of change in circumstances. Thereafter on 23.03.2022, the Hon’ble Allahabad High Court dismissed the Criminal Misc. Anticipatory Bail Application filed by the Appellant on the ground that non bailable warrants were issued against the Appellant and that chargesheet had been filed. Thereafter the Appellant filed the present Appeal.

Facts of the third Appeal - Appeal arising out of SLP (Crl.) No. 9482 of 2021
In the third appeal⁴, the Respondent No. 2 Rajesh Wangelu made a written complaint to the Station Officer, Aliganj Police Station, Lucknow alleging that on 23.12.2019, two officers of the National Laboratory for Conservation of Cultural Property, Lucknow had attacked him with a helmet and had threatened to kill him. A FIR was registered against the said officers under Sections 323, 504 and 506 of the Indian Penal Code, 1860. Thereafter Statements were recorded under Section 161 of the Code of Criminal Procedure, 1973 wherein it was recorded that the Respondent No. 2 was discriminated against for belonging to a different state. He added in his statement that the Appellant namely Manager Singh was also present during the alleged altercation. The Appellant Manager Singh, filed a petition for quashing of the proceedings before the Hon’ble Allahabad High Court and he was given the benefit of arrest till the filing of the chargesheet.

On 04.02.2020, a chargesheet was filed with an addition of Sections 308, 325 and 120B of the Indian Penal Code, 1860 and impleaded the Appellant Manager Singh as an accused. On 04.03.2021, an application for exemption from personal appearance was filed on behalf of the Appellant before the Learned Magistrate on the ground that he had gone out for personal reasons where he had taken ill. The Learned Magistrate rejected the said application recording that the Appellant had not obtained bail and that there was no provision for granting exemption from personal appearance prior to obtaining bail. Therefore, non bailable warrants were issued against the Appellant. Thereafter, the Appellant preferred a petition for quashing the criminal proceedings initiated against him however the Hon’ble High Court dismissed the same by an Order dated 16.03.2021. The Appellant thereafter filed the present appeal challenging the correctness of the Order dated 16.03.2021.

Observations made by the Hon’ble Apex Court
The Hon’ble Supreme Court referred to the case of Dablu Kujur Vs. State of Jharkhand⁵ wherein it was stated that if on information received or otherwise, an officer of the police station has reasons to suspect commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of the offence. Further, he shall proceed in person or depute any of his subordinate officers to proceed to the spot to investigate the facts and circumstances of the case, and if necessary, to take measures for discovery and arrest the offender. Such report is in the nature of a preliminary report.

As per the Hon’ble Bench, the details set out in the chargesheet have a substantial impact on the efficacy of procedure at the subsequent stages. The chargesheet is an integral to the process of taking cognizance, the issue of notice and framing of charge, being the only investigative document and evidence available to the Court till that stage. Further the Hon’ble Bench opined that the final report has to be prepared with these aspects in mind and should show with sufficient particularity and clarity, the contravention of the law which is alleged. The Hon’ble Bench added that the when the report complies with the said requirements, the Courts concerned should apply its mind whether or not to take cognizance and also proceed by issuing summons to the accused.

Observations made in the first Appeal
While dealing with the first appeal, the Hon’ble Bench noted that the chargesheet states that the offence under Section 420 is not made out. The Hon’ble Bench observed that the offence of cheating under Section 415 of the Indian Penal Code, 1860 requires dishonest inducement, delivering of a property as a result of the inducement, and damage or harm to the person so induced. The Hon’ble Bench further noted that the as per the investigating officer, no fraudulent and dishonest inducement is made out or established at the time when the agreement was entered. The offence of criminal intimidation arises when the accused intends to cause alarm to the victim, though it does not matter whether the victim is alarmed or not. The intention of the accused to cause alarm must be established by bringing evidence on record. The word ‘intimidate’ means to make timid or fearful, especially to compel or deter by or as if by threats. In the first appeal, the Hon’ble Bench quashed the chargesheet and the summoning order.

Observations made in the second Appeal
While dealing with the second appeal, the Hon’ble Apex Court observed that the assertions made out in the FIR allege that that the Appellants are frauds who have taken bainama (earnest money on the property), but thereafter are making excuses. The First Informant had visited the Appellants at their house who had then threatened them to implicate them in fake cases. The Hon’ble Bench allowed the appeal, and referred to the case of Maneka Sanjay Gandhi and Another Vs. Rani Jethmalani⁶ wherein it was held that “the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of the justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law.”

Observations made in the third Appeal -
The Hon’ble Bench opined that Non Bailable Warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State. Further the Hon’ble Bench noted that while there are no comprehensive set of guidelines for the issuance of non-bailable warrants, the Hon’ble Bench observed that on several occasions, non bailable warrants should not be issued, unless the accused and is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. In view of the above, the Hon’ble Bench quashed the summoning order against Manager Singh, the Appellant.

By - Soumya Kamat