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Investigating officer should inform accused about filing of charge-sheet especially when he is on bail
Lala Vs Versus State of Chhattisgarh
Criminal Misc. Petition No.65 of 2015
About/from the judgment:
"Non-bailable arrest warrant shouldn't be issued straightway at first instance. IO should inform accused about filing of charge-sheet when he is on bail."
While ruling that investigating officer should inform the accused about filing of charge-sheet specially when he is on bail, the High Court observed that Criminal courts should not issue non-bailable warrant of arrest straightway at the first instance.
The Court was hearing a plea challenging the validity of Additional Sessions Court's Order wherein the Court had affirmed the Magistrate Court's Order denying him the benefit of bail under Section 437 CrPC.
Facts of the Case
An FIR against the petitioner under Sections 509 of the IPC, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 read with Sections 66 (3), 67 and 72 of the IT Act was registered on 18th January 2013.
Since all the offences registered against him were bailable offences, he was released on personal bond on 19th January 2013 by concerned police officer.
It was the case of the petitioner that he was not intimated by the jurisdictional police about the filing of charge-sheet before the jurisdictional criminal court on 28th March 2014.
Further, the Court straightway registered criminal case and issued non-bailable warrant of arrest on 28th March 2014 (even though various SC rulings say that straightway non-bailable warrant shouldn't be issued).
He was arrested and produced before the Magistrate on 10th April 2014. On production of the accused / petitioner on that day, firstly, the trial Magistrate at 5.30 p.m. recorded in the order sheet that the accused has been produced at 4.45 p.m. and directly directed him to be sent to the Central Jail.
Immediately thereafter, when the accused submitted application under Section 437 of the CrPC for grant of bail, his bail application was taken on record (at 05:30 on the same day) and directed it to be listed on the next date i.e. 11th April.
Further, on the next date (11th April 2014), his application for regular bail was rejected, noting that even though the offences which he had been charged with are bailable, yet prima facie, offence under Section 67A of the IT Act is also made out which is non-bailable offence.
Thus, his application was rejected and revision preferred against that order was also dismissed by the impugned order.
Here, it may be noted that there was no charge against the petitioner for non-bailable offence, yet, he remained in custody merely on the basis of observation made by the learned Magistrate that offence under Section 67A of the IT Act is also prima facie made out, (particularly when no offence was added either by the police or by the Court in a duly constituted proceeding).
The High Court noted that the practice of courts in straightway issuing non-bailable warrant of arrest for securing the attendance of accused persons has been deprecated by the Apex Court in various rulings.
The Court relied on Apex Court's ruling in the case of Inder Mohan Goswami and another v. State of Uttaranchal and others (2007) 12 SCC 1, wherein it was held that issuance of non-bailable warrants actually interferes with personal liberty and therefore courts have to be extremely careful before issuing non-bailable warrant.
The HC further noted,
"The learned Magistrate was absolutely unjustified in straightway issuing non-bailable warrant of arrest for securing the attendance of the petitioner who stood enlarged on personal bond by the police station, particularly in absence of any evidence / documents on record to show that he was informed about filing of charge sheet or he was absconded and he was beyond the reach of the concerned police station."
Underlining the principle laid down in the Apex Court's ruling in the Case of Pradeep Ram v. State of 14 Jharkhand and another (2019)17 SCC 326, the Court said that since the petitioner was earlier enlarged on bail by the jurisdictional police and he was already on bail on the date he was arrested and brought before the Court in bailable offence and there was no addition of charges either by the police or by the criminal court at the stage of charge or otherwise, the petitioner / accused was entitled to be released on bail.
Importantly, the Court said,
"The entire procedure adopted by the learned Magistrate in entertaining the charge-sheet without verifying as to service of notice for appearance of the petitioner / accused and straightway issuing warrant of arrest in which the accused has already been enlarged on bail and thereafter, on his production sending him to Central Jail and keeping his application for grant of bail on the next date of hearing and on the next date rejecting his bail application without adding offence under Section 67A of the IT Act, is totally unknown to law."
Consequently, the impugned revisional order as well as the order passed by the trial Magistrate were thereby set aside.
This petition stood disposed of with the following directions: -
1. Whenever charge-sheet is to be filed and accused is already bailed out, the concerned investigating officer will ensure that intimation to the accused is given in legally permissible mode about date and place of filing charge-sheet and file the proof to the Court along with charge-sheet.
2. On production of charge-sheet, concerned court shall verify about intimation to the accused, date etc., about filing of charge-sheet has been given or not and depending upon that satisfaction, the court shall ensure the presence of accused.
3. Criminal Courts should consider the bail applications particularly in respect of the offences which are bailable on the same day itself without any delay and should not unnecessarily postpone the hearing of bail application for next day sending the accused to jail. Such a practice should be followed strictly by all the criminal courts.
Read the Judgment
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