[1.0] Present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner - original accused to quash and set aside the impugned order dated 09.02.2011 of arrest warrant passed by the learned Judicial Magistrate First Class, Petlad in Criminal Inquiry No.5/2007 presently being Criminal Case No.202/2011. It is also further prayed for an appropriate order to direct the learned JMFC, Petlad to issue summons to the petitioner for appearance in the aforesaid case.
[2.0] Facts leading to filing of the present petition in nut-shell are as under:
[2.1] That one Dhanabhai Punabhai Mohania filed a private complaint in the Court of learned JMFC, Petlad against the petitioner and others for the offences punishable under Sections 302, 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and under the provisions of the Arms Act and under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities Act") which was registered as Criminal Inquiry Case No.5/2007. It was alleged in the said complaint that uncle of the complainant Babubhai Malabhai Mohania was a labourer. On 17.07.2006, said Babubhai could not arrange for food for his children. He, therefore, went to Ashram of the petitioner hoping that he might find some food there. It was alleged that original accused Nos.2 to 5 were present in the Ashram. When he asked for food, it was refused and he was insulted and pushed on the ground. Thereafter, there was a scuffle and accused Nos.2 to 5 started beating him. It is alleged that Babubhai also started attacking the said accused persons in self defence at which time accused Nos.2 to 5 shouted for accused No.1 who came out with his revolver and fired injuring Babubhai near his right shoulder. That thereafter the said Babubhai ran away and went to Anand Hospital and thereafter, to Ahmedabad where he died. His wife, Mangiben performed his last rites. It is alleged that some three days thereafter, police had come to their house and and inquired about the place where Babubhai's body was burnt. Village people had shown them the spot from where, from the burnt ashes with the help of a magnet, they had recovered a small iron pallet which the police had put in a packet and seized along with the bones. The complainant had thereafter gone to the police station on several occasions. However, his complaint was not being attended to. He, therefore, filed the impugned private complaint in the Court of learned JMFC, Petlad alleging that all the accused had committed offence punishable under Section 302 with 114 of the IPC and the Arms Act and the Atrocities Act.
[2.2] It appears that thereafter learned Magistrate recorded the statement of the complainant on verification on 04.01.2007. In the statement, complainant stated that when the dead body of Babubhai was brought home, he had seen a deep injury mark on the right side of the back portion. Wife of the deceased had told him about what had happened. He was told that after being injured deceased had gone to Anand and in the early morning he was shifted to Ahmedabad where he died. His body was brought to the native place in an ambulance. On 4.1.2007, learned Magistrate ordered Court inquiry under Section 202 of the CrPC. That the learned Magistrate examined several witnesses. Certain documents were also produced before him. He ultimately passed order dated 12.9.2007 and dismissed the complaint under Section 203 of the CrPC. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Petlad dated 12.09.2007 dismissing the said complaint, the original complainant preferred Criminal Revision Application No.691/2007 before this Court. That the learned Single Judge after hearing the learned advocates appearing on behalf of the original complainant, the petitioner herein - original accused No.1 and the State and after perusing the Record & Proceedings of the case, allowed the said criminal revision application by quashing and setting aside the order dated 12.09.2007 passed by the learned JMFC, Petlad in Inquiry Case No.5/2007 insofar it pertained to petitioner herein - original accused No.1 and directed the learned Magistrate to issue process under Section 204 of the CrPC against the petitioner herein - original accused No.1 for the offence punishable under Section 302 of the IPC and under the Arms Act and directed the learned Magistrate to proceed further in accordance with law thereafter.
[2.3] That being aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge dated 28.10.2010 passed in Criminal Revision Application No.691/2007 directing the learned Magistrate to issue process under Section 204 of the CrPC against the petitioner herein - original accused No.1 for the offence under Section 302 of the IPC and under the Arms Act, petitioner herein - original accused No.1 approached the Hon'ble Supreme Court by way of Special Leave to Appeal (Criminal) No.9192/2010 and the Hon'ble Supreme Court by order dated 22.11.2010 has dismissed the same and confirmed the judgment and order dated 28.10.2010 passed by this Court passed in Criminal Revision Application No.691/2007. That thereafter pursuant to the order passed by the learned Single Judge dated 28.10.2010 in Criminal Revision Application No.691/2007, the learned JMFC, Petlad has directed to issue process under Section 204 of the CrPC against the petitioner herein - original accused No.1 for the offence punishable under Section 302 of the IPC and under the Arms Act and has directed to issue warrant against the petitioner herein making it returnable on 04.03.2011. The said order has been passed on 09.02.2011. Being aggrieved and dissatisfied by the order dated 09.02.2011 passed by the learned JMFC, Petlad in issuing the arrest warrant against the petitioner herein - original accused No.1 while issuing process under Section 204 of the CrPC against petitioner - original accused No.1 for offence punishable under Section 302 of the IPC and Section 27(1) of the Arms Act, the petitioner herein - original accused No.1 (now the sole accused) has preferred the present special criminal application under Article 227 of the Constitution of India.
[3.0] Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of original accused No.1 has vehemently submitted that the learned Magistrate has materially erred in directing to issue arrest warrant against the petitioner. It is submitted that the learned Magistrate has issued Non Bailable Warrant against the petitioner - accused without there being any just or proper cause and without carrying out proper scrutiny of the facts and application of mind. It is submitted that prior to the issuance of non-bailable warrant, no summonses were ever issued and/or received by the petitioner. Learned counsel appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. reported in (2007)12 SCC 1, more particularly, para 53 of the said decision and relying upon the said decision, it is submitted that the order passed by the learned Magistrate issuing non-bailable warrant against the petitioner is contrary to the direction issued by the Supreme Court in the aforesaid decision.
[3.1] Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioner has also relied upon the unreported decision of the learned Single Judge of this Court dated 30.12.2009 rendered in Criminal Miscellaneous Application No.8117/2009 in which the learned Single Judge has considered the decision of the Hon'ble Supreme Court in the case of Inder Mohan Goswami (Supra).
[3.2] Shri Nanavaty, learned Senior Advocate appearing on behalf of the petitioner has also relied upon the unreported decision of the learned Single Judge dated 29.06.1992 rendered in Criminal Miscellaneous Application No.1790/1992 and has submitted that in the similar set of facts and circumstances, the learned Single Judge has quashed and set aside the order passed by the learned Magistrate directing to issue non-bailable warrant issued while issuing the process under Section 204 of the CrPC. It is submitted that in the said decision the learned Single Judge has considered Section 204 of the CrPC read with Section 87 of the CrPC and it is held that while issuing the order for non-bailable warrant, the learned Magistrate is required to record the reasons in writing and the reasons in writing would be those reasons which have been stated in Section 87 of the Code only, namely that the Court sees a reason to believe that the petitioner is absconding or will not obey the summons.
[3.3] Shri Nanavaty, learned counsel has vehemently submitted that only in a case where it has been found by the learned Magistrate that the person will not voluntarily appear in the Court or the police authorities are unable to find the person or to serve him with summons; or it is considered that the person could harm someone if not placed into custody immediately, then and then only on conjoint reading of Section 204 read with Section 87 of the CrPC, the learned Magistrate is justified in ordering issuance of non-bailable warrant. It is submitted that in the present case, no such eventuality has taken place and no reasons are assigned by the learned Magistrate to the aforesaid and therefore, it is requested to quash and set aside the impugned order passed by the learned Magistrate ordering issuance of non-bailable warrant against the petitioner.
[3.4] Shri Nanavaty, learned counsel has further submitted that impugned order passed by the learned Magistrate ordering issuance of non-bailable warrant against the petitioner is even otherwise contrary to the direction issued by this Court in reported decision in the case of Ajit D. Padiwal v. State of Gujarat & Ors. reported in 2005(1) GLR 743 [at page 884 in para 31.3C(viii)]. It is submitted that in the said decision the Division Bench has issued certain directions and one of the direction contained in para 31.3C(viii) is that process of summons to be issued only at first instance and only if circumstances of case demand warrant should be resorted. It is further observed that unless there are reasons to believe that accused have absconded or that they will not obey the summons, and unless such detailed reasons are not recorded in writing by the Court, then straightway non-bailable warrants cannot be issued. It is submitted that the Division Bench has considered the provisions of Section 204(5) read with Section 87 of the CrPC. Therefore, it is submitted that the impugned order is even contrary to the direction issued by the Division Bench in the aforesaid decision.
[3.5] Shri Nanavaty, learned counsel appearing on behalf of the petitioner has also relied upon the following decisions of the Madras High Court, Bombay High Court and Allahabad High Court in support of his prayer to allow the present special criminal application to quash and set aside the impugned order of issuance of non-bailable warrant against the petitioner.
S. Ilandirayane v. State (Madras High Court) Nagarjan Mahadevan v. Sub-Inspector of Police Uvari Police Station Nellai Kattabomman District (Madras High Court) Major S.L. Bhasin v. Lt. Col. Ruey D. Colabawala (Bombay High Court) Vishwa Nath v.
Munsif Lower Criminal Court, Bahraich (High Court of Allahabad) Amar Pal v. State of U.P. (High Court of Allahabad) [3.6] Shri Nanavaty, learned counsel appearing on behalf of the petitioner has further submitted that even there is non-compliance of the provision contained in section 204(2) of the CrPC. It is submitted that as provided under Section 204(2) of the Code, no summons or warrant shall be issued against the accused under sub-section (1) of Section 204 of the Code until a list of prosecution witnesses has been filed. It is submitted that even in the impugned order itself while issuing the process against the petitioner for the offence punishable under Section 302 read with Section 114 of the IPC and directing to issue non-bailable warrant against the petitioner, it is specifically observed that a separate yadi be issued upon the complainant to produce the list of witnesses. Therefore, it is submitted that as the mandatory provision as provided under sub-Section (2) if Section 204 of CrPC has not been complied with, it is requested to quash and set aside the impugned order of issuing non-bailable warrant against the petitioner.
By making above submissions and relying upon the above decisions, it is requested to allow the present special criminal application and modify the impugned order passed by the learned JMFC, Petlad by converting the same into bailabel warrant and directing the petitioner to appear before the learned Magistrate on any date and the petitioner shall remain present before the learned Magistrate on any date as may be directed by this Court.
[4.0] Petition is opposed by Shri J.K. Shah, learned Additional Government Pleader on behalf of the State. It is submitted that in the present case the petitioner is facing the trial for serious offence under Section 302 of the IPC and Section 27(1) of the Arms Act. It is submitted that admittedly the case is a warrant case and not a summons case. It is submitted that whatever is provided under sub-section (5) of Section 204 of the CrPC is conferring additional powers to the learned Magistrate for issuing the warrant under Section 87 of the CrPC and what is provided under sub-section (5) of Section 204 of the CrPC is that notwithstanding anything contained in section 204, the learned Magistrate shall have power to issue warrant if a case is made out under Section 87 of the CrPC. Therefore, it is submitted that both the powers as such operate in different field and are not required to be read together. It is submitted that looking to the seriousness of the offence for which a person is charged and/or facing the trial, irrespective of making out a case under Section 87 of the CrPC, the learned Magistrate may issue non-bailable warrant against the accused and he has to appear before the learned Magistrate and/or surrender before the learned Magistrate and thereafter he has to apply for the bail before the learned Magistrate which can be considered by the learned Magistrate in accordance with law and on merits. It is submitted that in the present case as such the learned Magistrate has assigned reasons while directing to issue non-bailable warrant against the petitioner, that considering the serious offence alleged to have been committed by the petitioner and the seriousness of the offence, the learned Magistrate has directed to issue non-bailable warrant. Therefore, it is submitted that it cannot be said that learned Magistrate has not assigned any reasons at all while directing to issue non-bailable warrant against the petitioner. It is submitted that the contention on behalf of the petitioner that the learned Magistrate while issuing the non-bailable warrant has to assign the reasons as provided under Section 87 of the CrPC and only on making out the grounds as mentioned under Section 87 of the CrPC, non-bailable warrant can be issued, has no substance. It is submitted that on fair reading of sections 204 and 87 of the CrPC, the aforesaid has no legal base and cannot be accepted. According to the learned APP, provisions of section 87 of the CrPC would be applicable and/or confers power upon the learned Magistrate independently and independent to that of Section 204 of the CrPC.
[4.1] It is submitted that in the present case, having found a prima facie case against the petitioner for serious offence punishable under Section 302 of the IPC and Section 27(1) of the Arms Act, when even the learned Single Judge of this Court directed the learned Magistrate to issue process against the petitioner for the aforesaid offences and when the said order has been confirmed by the Hon'ble Supreme Court, looking to the serious offence of committing murder by the petitioner and committing the offence punishable under Section 302 of the IPC and Section 27(1) of the Arms Act, the learned Magistrate has not committed any error and/or illegality in directing to issue non-bailable warrant against the petitioner. It is submitted that if the concerned police officer would have registered the FIR of the complainant under Section 154 of the CrPC, in that case, it was well within the powers of the Investigating Officer to arrest the petitioner without even any order by the learned Magistrate and at that stage rigor under Section 87 of the CrPC would not have been made applicable. It is submitted that only when it was found that the concerned police officer did not register the FIR, the complainant was compelled to file private complaint under Section 190 of the CrPC and when a prima facie case is found against the petitioner and is to be tried for the offence punishable under Section 302 read with Section 27(1) of the Arms Act, the petitioner - accused cannot be permitted to get the benefit of non-registration of the FIR by the concerned police officer. Therefore, it is submitted that no illegality has been committed by the learned Magistrate in directing to issue non-bailable warrant against the petitioner while issuing the process against the petitioner for the offences under Section 302 of the IPC and Section 27(1) of the Arms Act.
[4.2] Now, so far as the submission made by Shri Nanavaty, learned counsel with respect to non-compliance of the provisions of sub-section (2) of Section 204 and consequently his prayer to quash and set aside the impugned order is concerned, it is submitted that on the aforesaid ground the impugned order of issuance of non-bailable warrant is not required to be quashed and set aside. It is submitted that the object and purpose of sub-section (2) of Section 204 of the CrPC is that before the trial commences, the accused persons are supposed to be informed the witnesses who are likely to be examined and therefore, as such the aforesaid provision is to be considered in light of the object and purpose of the same. It is submitted that as such the trial has not begun and before the trial begins, even as directed by the learned Magistrate in the impugned order, a separate list of witnesses is to be furnished / provided. Therefore, it cannot be said that at this stage petitioner is prejudiced by not providing the list of witnesses at this stage and/or atleast on the aforesaid ground, the impugned order of issuance of non-bailable warrant is not required to be quashed and set aside.
Making above submissions, it is requested to dismiss the present petition.
[5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that petitioner is charged for the offences under Section 302 of the IPC as well as for the offence under Section 27(1) of the Arms Act.
That the allegation against the petitioner is that he committed the murder of the uncle of the original complainant - Babubhai Malabhai Mohania who was the labourer. It is required to be noted that initially the complainant tried to lodge the complaint with the concerned police station, however, the concerned police officer did not register the complaint as FIR and therefore, the complainant was constrained to file a private complaint under Section 190 of the CrPC in the Court of learned JMFC, Petlad against the petitioner and other accused persons for the offences under Sections 302 and 114 of the IPC and under Section 27(1) of the Arms Act and under the Atrocities Act. That initially the learned Magistrate passed an order for inquiry under Section 202 of the CrPC and thereafter, after holding necessary inquiry, passed an order dated 12.09.2007 dismissing the said complaint under Section 203 of the CrPC. As stated herein above, being aggrieved and dissatisfied with the order passed by the learned JMFC dated 12.09.2007 in Criminal Inquiry Case No.5/2007 and in dismissing the said complaint under Section 203 of the CrPC, the original complainant preferred Criminal Revision Application No.691/2007 before this Court and the learned Single Judge by judgment and order dated 28.10.2010 allowed the said Revision Application and quashed and set aside the order passed by the learned Magistrate dismissing the said complaint qua the petitioner herein and directed the learned Magistrate to issue process under Section 204 of the CrPC against the petitioner herein - original accused No.1 for the offences under Section 302 of the IPC and under the Arms Act and directed to proceed further in accordance with law thereof. That the judgment and order passed by the learned Single Judge passed in Criminal Revision Application No.691/2007 came to be challenged by the petitioner before the Hon'ble Supreme Court and the Hon'ble Supreme Court has dismissed the said SLP confirming the order passed by the learned Single Judge directing to issue process against the petitioner for the offences under Section 302 of the IPC and for the offences under the Arms Act. That thereafter the learned Magistrate has passed the impugned order under Section 204 of the CrPC directing to issue process against the petitioner - original accused under Section 302 of the IPC and for the offence under Section 27(1) of the Arms Act and has directed to issue arrest warrant against the petitioner. Being aggrieved and dissatisfied with the impugned order of issuance of arrest warrant and directing the petitioner to remain present before the concerned Magistrate, the petitioner - original accused has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
[5.1] As stated herein above, the main contention of the learned counsel appearing on behalf of the petitioner is that the learned Magistrate has materially erred in directing to issue arrest warrant against the petitioner while issuing the process against the petitioner in exercise of powers under Section 204 of the CrPC. It is the case on behalf of the petitioner that the provision of Section 204 of the CrPC is required to be read along with Section 87 of the CrPC and unless the conditions as provided under Section 87 of the CrPC are satisfied and unless the reasons as provided under Section 87 of the CrPC are recorded, the learned Magistrate cannot issue non-bailable warrant while issuing the process in exercise of powers under Section 204 of the CrPC. Therefore, the contention on behalf of the petitioner is that except in a case where it is found by the learned Magistrate that the accused is absconding or will not obey the summons or unless it is found that the accused has failed to appear and the summons is proved to have been duly served in time and no reasonable excuse is offered for such failure, the Magistrate cannot be issue non-bailable warrant. It is submitted that even in such situation, the learned Magistrate is required to record the reasons in writing at the time of issuing warrant against the accused for his arrest. It is also the case on behalf of the petitioner that the aforesaid would be applicable in summons cases as well as warrant cases. It is also the case on behalf of the petitioner relying upon the decision of the Hon'ble Supreme Court in the case of Inder Mohan Goswami (Supra) and the decision of the Division Bench of this Court in the case of Ajit D. Padiwal (Supra) that the learned Magistrate at the first instance must issue the summons and only in exceptional cases where the learned Magistrate has reason to believe that accused have absconded or that he will not obey the summons then and then in that case only, after recording the reasons in writing, non-bailable warrant can be issued. Relying upon the aforesaid decision, he has submitted that to issue non-bailable warrant straightway, is not permissible. Now, considering the provision of Section 204 of the CrPC as well as Section 87 of the CrPC, it appears to the Court that both the provisions operate in a different field and in different eventuality. Section 87 of the CrPC confers independent and separate power upon the learned Magistrate to issue warrant in certain circumstances i.e. in a case where the learned Magistrate is of the opinion that the accused either before the issuance of the summons or after the issuance of the same but before the time fixed for his appearance, has absconded or will not obey the summons or when it has been found by the learned Magistrate that the accused person has failed to appear despite the service of the summons and no reasonable excuse is offered for such failure. Therefore, the power conferred upon the learned Magistrate under Section 87 of the CrPC is to issue a warrant in lieu of, or in addition to summons. Therefore, Section 87 of the CrPC would be applicable in the summons cases. Considering Section 204 of the CrPC, the learned Magistrate has to issue only summonses for the attendance of the accused in a summons case. However, in a summons case, the Magistrate may issue the warrant in lieu of or in addition to summons subject to fulfilling of the requirement of Section 87 of the CrPC. Otherwise, in a summons case while exercising powers under Section 204 of the CrPC, the Magistrate is not empowered and has no jurisdiction to issue warrant and therefore, in sub-section (5) of Section 204 of the CrPC, it is provided that nothing in Section 204 CrPC shall be deemed to affect the provision of Section 87 of the CrPC. Therefore, what is provided under sub-section (5) of Section 204 of the CrPC is conferring additional powers upon the Magistrate to issue warrant even in the summons cases in the circumstances as provided under Section 87 of the CrPC, by recording reasons in writing. Therefore, on fair reading of Section 204 of the CrPC read with Section 87 of the CrPC, Section 87 of the CrPC read with sub-section (5) of Section 204 of the CrPC is to be read with respect to the summons cases.
[5.2] Now, so far as the warrant case is concerned, as per sub-section (1)(b) of Section 204 of the CrPC, the discretion lies with the learned Magistrate to issue a warrant or if he thinks fit, to summons for causing the accused to be brought or to appear at a certain time before such Magistrate. Therefore, looking to the seriousness of offence and at the time of issuance of the process having found prima facie case against the accused, the learned Magistrate may issue a warrant in the warrant case. However, that discretion lies with the learned Magistrate. If the contention on behalf of the petitioner that unless it is found by the Magistrate that the accused has absconded or will not obey the summons or has failed to appear despite service of summons, the Magistrate cannot issue the warrant is accepted, in that case, the discretion which is vested with the Magistrate to issue warrant in warrant case as provided under sub-section (1)(b) of Section 204 of the CrPC would become nugatory and/or redundant. Considering the conjoint reading of Section 204 and 87 of the CrPC, it appears to the Court that it is not the intention of the legislature. If the contention on behalf of the petitioner is accepted, in that case, even if the accused is alleged to have committed serious offence of murder like the case on hand or rape, unless it is found that he is likely to abscond or has failed to appear, such accused person who has committed the serious offence will never be arrested and no warrant can be issued against him. It is to be noted that if the FIR would have been registered by the concerned police officer, in that case, such accused can be arrested by the Investigating Officer and there the question with respect to warrant for his arrest would not arise. When the concerned police officer has refused to register the FIR, the complainant was compelled to file the private complaint under Section 190 of the CrPC and thereafter on inquiry it has been found that the petitioner has committed serious offences punishable under Section 302 of the IPC and under Section 27(1) of the Arms Act and having prima facie found that the petitioner has committed the offences, a process is issued against him for the aforesaid offences and while issuing the process, considering the seriousness of the offence under Section 302 of the IPC and under Section 27(1) of the Arms Act, the learned Magistrate has directed to issue warrant against the petitioner, it cannot be said to be illegal and/or contrary to the provision of Section 204 of the CrPC. Learned Magistrate has assigned reasons while issuing the warrant against the petitioner recording that the petitioner has committed serious offence punishable under Section 302 of the IPC as well as the offence under Section 27(1) of the Arms Act.
[6.0] Under the circumstances, the decisions relied upon by the learned counsel appearing on behalf of the petitioner would not be of any assistance to him in the facts and circumstances of the case. So far as the decision of the Hon'ble Supreme Court in the case of Inder Mohan Goswami (Supra) relied upon by the learned counsel appearing on behalf of the petitioner is concerned, it is required to be noted that in the said decision, the Hon'ble Supreme Court has issued guidelines to the Magistrate before issuing the warrants in the summons cases. In the case before the Hon'ble Supreme Court, there was no controversy that in a warrant case for the serious offence under Section 302 of the IPC and/or other serious offences while issuing the process, whether the learned Magistrate can pass order of issuance of warrant or not and whether in such cases such powers are subject to the restrictions under Section 87 of the CrPC or not. Under the circumstances, on facts the said decision would not be of any assistance to the petitioner. Similarly, the decision of the Division Bench in the case of Ajit D. Padiwal (Supra) also would not be of any assistance to the petitioner. This Court has also considered other decisions of other High Courts relied upon by the learned counsel appearing on behalf of the petitioner referred to herein above and considering the same it appears that none of the decisions would be applicable to the facts of the present case.
[6.1] Now, so far as the reliance placed upon the decision of the learned Single Judge dated 29.06.1992 rendered in Criminal Miscellaneous Application No.1790/1992 is concerned, on facts, the said decision would not be of any assistance to the petitioner as in the present case the learned Magistrate, while directing to issue non-bailable warrant against the petitioner, has specifically assigned reasons that in view of the seriousness of the offence of committing murder, non-bailable warrant is issued. Under the circumstances, when the reasons have been assigned while issuing non-bailable warrant, aforesaid decision would not be of any assistance to the petitioner.
[6.2] As stated herein above, the petitioner is accused for the offences under Section 302 of the IPC and for the offence under Section 27(1) of the Arms Act and prima facie case has been found against the petitioner for the aforesaid offences and the decision of the learned Single Judge of this Court directing to issue process against the petitioner for the offences under Section 302 of the IPC as well as for the offence under Section 27(1) of the Arms Act has been confirmed by the Hon'ble Supreme Court. Therefore, when the petitioner is accused of serious offence punishable under Section 302 of the IPC and under Section 27(1) of the Arms Act and considering seriousness of the offence, when the learned Magistrate has directed to issue arrest warrant against the petitioner, while issuing process in exercise of powers under Section 204 of the CrPC, it cannot be said that the learned Magistrate has committed any error and/or illegality and/or has exceeded in its jurisdiction which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India.
[6.3] Now, so far as the submission of the learned counsel appearing on behalf of the petitioner that as at the time of passing the impugned order and issuing the process, the list of prosecution witnesses has not been filed as required under sub-section (2) of section 204 of the CrPC and therefore, the impugned order deserves to be quashed and set aside is concerned, the same has no substance. The object and purpose of sub-section (2) of section 204 of the CrPC seems to be that before any accused is put to trial, he is required to be informed the names of the prosecution witnesses. It is to be noted that in the present case, the proceedings before the learned Magistrate was at the time of issuance of the process and in the impugned order the learned Magistrate has specifically observed that process against the petitioner for offences under Section 302 of the IPC and under Section 27(1) of the Arms Act and the arrest warrant be issued only on producing the list of the prosecution witnesses and on payment of process fee. Therefore, it appears that the learned Magistrate has taken sufficient care to follow the procedure as required under Section 204(2) of the CrPC. Under the circumstances, on the aforesaid ground, the impugned order is not required to be quashed and set aside.
[7.0] In view of the above and for the reasons stated above, petition fails and the same deserves to be dismissed and is, accordingly, dismissed. Ad-interim relief granted earlier stands vacated forthwith. Rule is discharged.
[7.1] In view of the above, now the petitioner to surrender/be arrested in view of the non-bailable warrant issued by the learned Magistrate and produce before the learned Magistrate on 30th January 2012.
(M.R.
Shah, J.) *menon Top