LAWS(DLH)-1996-5-124

CHANDRA SWAMI AND ANR. Vs. C.B.I.

Decided On May 24, 1996
Chandra Swami and Anr. Appellant
V/S
C.B.I. Respondents

JUDGEMENT

(1.) The learned CMM after taking congnizance has ordered for the issuance of non-bailable warrants against the petitioner.

(2.) AGGRIEVED by the order of issuing of non-bailable warrants against him, the petitioner has come up before this Court. Order has been assailed, inter alia on the ground that the petitioner was already en­joying the concession of bail ever since 1988. There was no fresh material available on record for the Court to issue non-bailable warrants. Issuance of non-bailable warrants amounted to cancellation of his bail which he was already enjoying. For cancellation of bail very strong reasons are required. The Trial Court ought to have issued summons in such an eventuality, particularly when the petitioner was enjoying the concession of bail. There was no application of C.B.I. that the bail be cancelled. Mere filing of the charge sheet by itself was no ground to can­cel the bail. So much so even the C.B.I. in the charge sheet prayed that summons be issued against the petitioner. This shows the C.B.I. was not labouring under any apprehensions about petitioner's absconding or would not appear. In fact C.B.I. was fully aware that the petitioner was on bail and had not misused the same.

(3.) ASHOK Arora appearing for the petitioner contended that once the petitioner was enjoying the concession of bail, the Magistrate' could not have issued non-bailable warrants. This shows non-ap­plication of mind. Section 87 of the Code of Criminal Procedure (in short Code) which governs Section 204 of the Code clearly spell out that before issuing warrants the Magistrate must record the reasons for his satisfaction. But in these case in hand that has not been done, hence the issuance of non- bailable warrants was without jurisdic­tion and bad in law. If what Mr. Arora con­tends is admitted that Section 87 governs Section 204 of the Code, then his contention has to be accepted and the order of issuing non-bailable warrants on this account must be held to be bad in law because admittedly no reasons for issuing warrants as required under Section 87 of the Code have been furnished in this case. But unfortunately, the interpretation of Mr. Arora based on Section 87 governs the provisions of Section 204 cannot be accepted. Section 87 of the Code is an enabling provision and confer a discretion upon the Court to issue a warrant in lieu of summons. The provisions of Sec­tion 87 emopowers even in a summon case to issue warrant to secure the appearance of a person. For doing so the Court has to record its reasons, in writing, for issuing such a warrant in lieu of summons or in addition to summon. Therefore, it could not be correct to say that whenever the Court at the time of taking cognizance in a warrant case issues warrants, it has to record reasons for doing so.