BATA Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' for brevity. The petitioner, being the accused in G.R. Case No.227 of 2010 of the court of learned JMFC (P), Kujang, arising out of Kujang P.S. Case No.88 of 2010 initiated for the alleged commission of offence under Sections 294, 323, 354, 506 of the IPC read with Section 3(1)(x)(xi) of the SC and ST (PA) Act has challenged the orders dated 18.09.2010 and 17.01.2011. The Investigating Officer prayed for issuance of non-bailable warrant against the accused-petitioner. The learned Magistrate perused the case records. He recorded that name of the accused finds place in the case diary, statement recorded under Section 161 of the Code as well as in the FIR. He further recorded that the accused is not apprehended in spite of several attempts. Hence, issued non-bailable warrant of arrested against the present petitioner.

(2.) The Hon'ble Supreme Court in Inder Mohan Goswami and another vs. State of Uttaranchal and others, 2007 12 SCC 1 has held that civilized countries have recognised that liberty is the most precious of all 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 Political Rights, 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of the Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. The Hon'ble Apex Court held that the issuance of nonbailable warrant involves interference with personal liberty. Arrest and imprisonment means infringement of precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrant. The Hon'ble Apex Court further held that non-bailable warrant should be issued to bring a person to court when summon or bailable warrant would be unlikely to have the desired result. The examples are that -

(3.) However, in this case, such a procedure is not adopted. In the case of Sri Dipti Ranjan Parida @ Dilu vs. State of Orissa, 2008 2 OrissaLR 148 this Court has the occasion to examine the requirements of the law before issuing warrant before submission of charge-sheet. This Court took the view that Section 73 of the Code provides that the learned Magistrate with a discretion to issue warrant on certain conditions. It is appropriate to take note of the aforesaid Section. It reads as follows: