# Peer Mohammad v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-13
- **Case number:** Criminal Appeal No. 770 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/peer-mohammad-v-state-of-u-p-ors-49172
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Sections 87 & 482- Non- Bailable
Warrants issued immediately after taking
cognizance- After submission of charge
sheet, Court below has taken cognizance
vide order dated 19.08.2020 and by the
same order, non-bailable warrant has also
been issued against the appellant without
assigning any reason- In Section 87 of
Cr.P.C., it is clearly provided that while
issuing summons for arrest, reasons are
required to be given in writing, but
without
going
through
the
same,
immediate after taking cognizance, nonbailable warrant has also been issued-
Therefore, it is required on the part of
Judicial Officers to follow the provisions of
section 87 Cr.P.C. as well as law laid down
by the Courts while issuing summoning
order, bailable or non-bailable warrants as
the case may be. If the facts of the case
require immediate issuance of bailable or
non-bailable
warrants
while
taking
cognizance, it is required on the part of
Magistrate to record his satisfaction.

Warrants for arrest can only be issued by the
Magistrate, while summoning the accused, after
recording reasons in writing and not otherwise.
(Para 8, 9)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-
928 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Peer Mohammad Vs. State of U.P. & Ors.
927
the negative burden on the appellant
accused. The prosecution has not brought
forward any evidence which could at least
establish the fact that at the time of
occurrence, the appellant was inside the
house. Hence, there is no applicability of
Section 106 of Indian Evidence Act in this
case.

19. In view of aforesaid discussion,
we are of the considered view that
prosecution has not discharged its burden
to prove the case beyond reasonable doubt
and no reverse burden could be placed on
the accused with the aid of Section 106 of
Indian Evidence Act when the prosecution
has not discharged its burden first.

20. Hence, learned trial Judge has not
appreciated
the
evidence
in
right
perspective and wrongly convicted and
sentenced the appellant. We are unable to
concur with the findings recorded in
impugned judgement and benefit of doubt
is given to the appellant. Consequently, the
appeal is liable to be allowed.

21. Accordingly, the appeal is
allowed.

22. Conviction and sentence of
appellant u/s 302 of IPC is hereby set aside.
The appellant be set free forthwith, if not
wanted in any other case. Fine be refunded
if already deposited.

23. Record and proceedings be sent
back to the court below.
----------
(2023) 1 ILRA 927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Criminal Appeal No. 770 of 2022

Peer Mohammad ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Dharmendra Kumar

Counsel for the Opposite Parties:
G.A., Mohd. Aslam Azhar Khan, Sri Rajeev
Ratan Shukla

Criminal Law- Code of Criminal Procedure,
1973- Sections 87 & 482- Non- Bailable
Warrants issued immediately after taking
cognizance- After submission of charge
sheet, Court below has taken cognizance
vide order dated 19.08.2020 and by the
same order, non-bailable warrant has also
been issued against the appellant without
assigning any reason- In Section 87 of
Cr.P.C., it is clearly provided that while
issuing summons for arrest, reasons are
required to be given in writing, but
without
going
through
the
same,
immediate after taking cognizance, nonbailable warrant has also been issued-
Therefore, it is required on the part of
Judicial Officers to follow the provisions of
section 87 Cr.P.C. as well as law laid down
by the Courts while issuing summoning
order, bailable or non-bailable warrants as
the case may be. If the facts of the case
require immediate issuance of bailable or
non-bailable
warrants
while
taking
cognizance, it is required on the part of
Magistrate to record his satisfaction.

Warrants for arrest can only be issued by the
Magistrate, while summoning the accused, after
recording reasons in writing and not otherwise.
(Para 8, 9)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-
928 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Smt. Usha Jain & anr. Vs St. of U.P. & anr.
(Application U/S 482 No. 19037 of 2018

2. Inder Mohan Goswami Vs St. of Uttaranchal,
(2007) 12 SCC 1

3. Satender Kumar Antil Vs CBI & anr. (Misc.
Application No. 1849 of 2021 in SLP (Crl.) No.
5191 of 2021 decided on 11.07.2022.
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
appellant, learned AGA for the State and
Sri Rajeev Ratan Shukla, learned counsel
for respondent No. 2.

2. By means of the present criminal
appeal under Section 14A-1, the appellant
is assailing the legality and validity of the
order dated 19.08.2020 and charge sheet
dated
06.07.2020
as
well
as
entire
proceeding of Case No. 88 of 2020, State v.
Peer Mohammad, arising out of Case
Crime No. 163 of 2019, under Sections-
419, 420, 467, 468, 471, 504, 506 of IPC
and Sections 3(2)5A and 3(1)S of SC/ST
Act, Police Station- Pashchimi Sharira,
District- Kaushambi, pending in the Court
of Special Judge SC/ST Act, Kaushambi.

3. Learned counsel for appellant
submitted that charge sheet was submitted
on 19.08.2020 and on the very same date,
after taking cognizance, straight away non
bailable warrant has been issued against the
appellant, which is bad in law. It is next
submitted that while issuing non bailable
warrants, it is required on the part of
Magistrate concerned to record satisfaction,
but in the present case, no satisfaction has
been recorded as to why, while taking
cognizance, non bailable warrant has been
issued . It is further submitted that it is
required on the part of Courts to first issue
summoning
order,
thereafter
bailable
warrant, then a non-bailable warrant, if
required. In support of his contention, he
has placed reliance upon the judgments of
this Court as well as Apex Court passed in
the matters of Smt. Usha Jain and another
vs. State of U.P. and another (Application
U/S 482 No. 19037 of 2018 , Inder Mohan
Goswami v. State of Uttaranchal, (2007)
12 SCC 1 and Satender Kumar Antil vs.
Central Bureau of Investigation & Anr.
(Misc. Application No. 1849 of 2021 in
Special Leave Petition (Crl.) No. 5191 of
2021 decided on 11.07.2022.

4. Learned counsels for opposite
parties have vehemently opposed the
submissions made by learned counsel for
appellant, but could not dispute the
aforesaid facts as well as legal submissions.

5. I have considered the submissions
advanced by counsels for parties and
perused the records as well as judgments of
this Court as well as Apex Court passed in
Smt. Usha Jain (Supra) and Satender
Kumar Antil (Supra).

6. This Court in the matter of Smt.
Usha Jain (Supra) has dealt with in detail
about the issuance of summons, bailable
and
non-bailable
warrants.
Relevant
paragraph of the said judgment is quoted
below:-

"Learned
counsel
for
the
applicants has drawn the attention of the
Court to the order-sheet of the criminal
complaint case and from very perusal of the
order sheet, I find that learned Magistrate
before
issuing
bailable
warrant
on
27.11.2017 has not recorded his satisfaction
with regard to the service of the summons
upon the accused applicants.

A large number of applications
under Section 482 Cr.P.C. are being filed
every day challenging the summoning
1 All. Peer Mohammad Vs. State of U.P. & Ors.
929
order, bailable and non-bailable warrants
issued more than 90 days before and even
such applications are filed as belatedly as
after 12 months from the date of
summoning order and the only excuse
taken to justify the delay is that summons
were not served/ received and hence no
knowledge.

It is very unfortunate state of
affairs at the end of the Judicial Magistrate
that before proceeding to issue bailable
warrant,
no
satisfaction
is
recorded
regarding effective service of summons
against the accused persons, which should
be a condition precedent for issuing
bailable warrant. In the absence of any such
satisfaction being recorded, the issuance of
bailable and non-bailable warrant is not
justified.

Under Chapter-III of the General
Rules (Criminal) regarding service of
process or register the processes as
maintained
his
circular
letter
being
C.L.No.42/98 dated: Allahabad: 20/8/1998
has been issued which reads as under:-

"The Hon'ble court has noticed
that the present system of service of
summons is not effectively working and
service upon the witness/ accused persons
are not being effected within the period
fixed by the courts. The system is effecting
the speedy trial of sessions and magisterial
cases. In this regard, the court has taken the
following decisions for strict compliance
by all :-

1. Old practice of fixing one
sessions trial for three days in continuation
is revived. No other sessions trial except
any formal part-heard trial in which one or
two formal witnesses are to be examined
should be fixed on the that day.

2.
The
process
register
as
mentioned in rule 12 of chapter III of
G.R.Criminal be strictly maintained by all
courts. A police official who is receiving
the summons must state his name and
number in clear block letters in columns
no.5 so that the responsibility be fastened
upon him.

3. Public prosecutor and D.G.C.
(Criminal), as the case may be, should be
asked to apply to the court for issue of
summons but giving complete particulars
of the witness. The summons should,
thereafter, be prepared and served upon the
witnesses.

4. If the police personnel are not
complying with the directions of the court
then appropriate action under the provision
of the contempt of courts Act be initiated
against them."

By issuing the aforesaid circular,
the High Court has virtually taken due care
of the speedy disposal of trial in criminal
cases but ultimately, it appears, the circular
letter (supra) is not complied with in its
true spirit either at the end of Magistrates
as they do not take due care to ensure that
police report regarding service of summons
is available on record, or the police is not at
all submitting any report in most of the
cases.

Laxity on the part of either
Judicial Officers or on the part of police
administration is a serious issue and calls
for an immediate action. I, therefore, direct
that the Judicial Magistrates will ensure
strict compliance of the circular letter dated
20th August, 1998 (supra) mandatorily.

Let a copy of this order be
circulated to all the Judicial Magistrates in
the State to ensure strict compliance of the
circular and recording their satisfaction
with regard to the service of summons
before issuing bailable or non-bailable
warrants.

Registry of this Court is also
directed to send a copy of this order to the
Director General of Police, U.P. and to the
Secretary, Home Affairs, Government of
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar
Pradesh
for
issuing
necessary
directions at their respective ends to the
subordinate police officers to act in
accordance with the procedure in matter of
service of processes as desired under the
circular letter dated 20th August, 1998
issued under General Rules (Criminal)."

7. Recently, in the matter of Satender
Kumar Antil (Supra), Apex Court, while
considering the compliance of Sections 41
and 41-A of Cr.P.C., has also considered
sections 87 & 88 of Cr.P.C and reiterated
the law laid down by the Apex Court in the
matter of Inder Mohan Goswami (Supra) .
Relevant paragraphs of the said judgment is
quoted below:-

"30. We also expect the courts
to come down heavily on the officers
effecting arrest without due compliance
of Section 41 and Section 41A. We
express our hope that the Investigating
Agencies would keep in mind the law laid
down in Arnesh Kumar (Supra), the
discretion
to
be
exercised
on
the
touchstone of presumption of innocence,
and
the
safeguards
provided
under
Section 41, since an arrest is not
mandatory. If discretion is exercised to
effect such an arrest, there shall be
procedural compliance. Our view is also
reflected by the interpretation of the
specific provision under Section 60A of
the Code which warrants the officer
concerned to make the arrest strictly in
accordance with the Code.

Section 87 and 88 of the Code

"87. Issue of warrant in lieu of,
or in addition to, summons.--A Court
may, in any case in which it is empowered
by this Code to issue a summons for the
appearance of any person, issue, after
recording its reasons in writing, a warrant
for his arrest--

(a) if, either before the issue of
such summons, or after the issue of the
same but before the time fixed for his
appearance, the Court sees reason to
believe that he has absconded or will not
obey the summons; or

(b) if at such time he fails to
appear and the summons is proved to have
been duly served in time to admit of his
appearing in accordance therewith and no
reasonable excuse is offered for such
failure

88. Power to take bond for
appearance.--When any person for whose
appearance or arrest the officer presiding in
any Court is empowered to issue a
summons or warrant, is present in such
Court, such officer may require such person
to execute a bond, with or without sureties,
for his appearance in such Court, or any
other Court to which the case may be
transferred for trial."

31.When the courts seek the
attendance of a person, either a summons
or a warrant is to be issued depending upon
the nature and facts governing the case.
Section 87 gives the discretion to the court
to issue a warrant, either in lieu of or in
addition to summons. The exercise of the
aforesaid power can only be done after
recording of reasons. A warrant can be
either bailable or non-bailable. Section 88
of the Code empowers the Court to take a
bond for appearance of a person with or
without sureties.

32.Considering the aforesaid two
provisions, courts will have to adopt the
procedure
in
issuing
summons
first,
thereafter a bailable warrant, and then a
non-bailable warrant may be issued, if so
warranted, as held by this Court in Inder
Mohan Goswami v. State of Uttaranchal,
(2007) 12 SCC 1. Despite the aforesaid
clear dictum, we notice that non-bailable
warrants are issued as a matter of course
1 All. Peer Mohammad Vs. State of U.P. & Ors.
931
without due application of mind and
against the tenor of the provision, which
merely facilitates a discretion, which is
obviously to be exercised in favour of the
person whose attendance is sought for,
particularly in the light of liberty enshrined
under Article 21 of the Constitution.
Therefore, valid reasons have to be given
for not exercising discretion in favour of
the said person. This Court in Inder
Mohan Goswami v. State of Uttaranchal,
(2007) 12 SCC 1, has held that:

"50. Civilised countries have
recognised that liberty is the most precious
of all the 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 24 inalienable right of every
human being. Similarly, Article 21 of our
Constitution proclaims that no one shall be
deprived of his liberty except in accordance
with procedure prescribed by law.

51. The issuance of non-bailable
warrants
involves
interference
with
personal liberty. Arrest and imprisonment
means deprivation of the most precious
right of an individual. Therefore, the courts
have to be extremely careful before issuing
non-bailable warrants.

52. Just as liberty is precious for
an individual so is the interest of the
society in maintaining law and order. Both
are extremely important for the survival of
a civilised society. Sometimes in the larger
interest of the public and the State it
becomes absolutely imperative to curtail
freedom of an individual for a certain
period, only then the non-bailable warrants
should be issued.

When
non-bailable
warrants
should be issued

53. Non-bailable warrant should
be issued to bring a person to court when
summons or bailable warrants would be
unlikely to have the desired result.
This could be when:

- it is reasonable to believe that
the person will not voluntarily appear in
court; or

- the police authorities are unable
to find the person to serve him with a
summon; or

- it is considered that the person
could harm someone if not placed into
custody immediately.

54. As far as possible, if the court
is of the opinion that a summon will suffice
in getting the appearance of the accused in
the court, the summon or the bailable
warrants should be preferred. The warrants
either bailable or non-bailable should never
be issued without proper scrutiny of facts
and complete application of mind, due to
the extremely serious consequences and
ramifications which ensue on issuance of
warrants. The court must very carefully
examine whether the criminal complaint or
FIR has not been filed with an oblique
motive.

55. In complaint cases, at the first
instance, the court should direct serving of
the summons along with the copy of the
complaint. If the accused seem to be
avoiding the summons, the court, in the
second instance should issue bailable
warrant. In the third instance, when the
court is fully satisfied that the accused is
avoiding
the
court's
proceeding
intentionally, the process of issuance of the
non-bailable warrant should be resorted to.
Personal liberty is paramount, therefore, we
caution courts at the first and second
instance to refrain from issuing nonbailable warrants.

56.
The
power
being
discretionary must be exercised judiciously
932 INDIAN LAW REPORTS ALLAHABAD SERIES
with extreme care and caution. The court
should properly balance both personal 25
liberty and societal interest before issuing
warrants. There cannot be any straitjacket
formula for issuance of warrants but as a
general rule, unless an accused is charged
with the commission of an offence of a
heinous crime and it is feared that he is
likely to tamper or destroy the evidence or
is likely to evade the process of law,
issuance of non-bailable warrants should be
avoided.

57. The court should try to
maintain proper balance between individual
liberty and the interest of the public and the
State while issuing nonbailable warrant."

8. In the present case, facts are
undisputed. After submission of charge
sheet, Court below has taken cognizance
vide order dated 19.08.2020 and by the
same order, non-bailable warrant has also
been issued against the appellant without
assigning any reason. In Section 87 of
Cr.P.C., it is clearly provided that while
issuing summons for arrest, reasons are
required to be given in writing, but without
going through the same, immediate after
taking cognizance, non-bailable warrant
has also been issued.

9. This Court in the matter of Smt.
Usha Jain( Supra) has held that satisfaction
has to be recorded for issuance of bailable
warrants and copy of said judgment has also
been circulated to all the Judicial Officers in
the State for strict compliance for recording
satisfaction with regard to the service of
summons before issuing bailable or nonbailable warrants. Recently, in the matter of
Satender Kumar Antil (Supra), Apex Court,
reiterating the law laid down by the Apex
Court in the matter of Inder Mohan
Goswami (Supra), has held in a very clear
words that Courts will have to adopt the
procedure
for
issuing
summons
first,
thereafter a bailable warrant, and then a nonbailable warrant may be issued, if so
warranted. Therefore, it is required on the
part of Judicial Officers to follow the
provisions of section 87 Cr.P.C. as well as
law laid down by the Courts while issuing
summoning order, bailable or non-bailable
warrants as the case may be. If the facts of the
case require immediate issuance of bailable
or
non-bailable
warrants
while
taking
cognizance, it is required on the part of
Magistrate to record his satisfaction.

10. It appears that Judicial Officers are
not following the provisions of Cr.P.C. as
well as law laid down by the Courts and
passing orders in a very casual manner.

11. So far as present case is
concerned,
impugned
order
dated
19.08.2020 passed by Special Judge,
SC/ST
Act,
Kaushambi
is
not
in
accordance with the provisions of Section
87 Cr.P.C. as well as law laid down by the
Courts in the matters of Smt. Usha Jain(
Supra), Satender Kumar Antil (Supra) &
Inder Mohan Goswami (Supra), therefore,
the same is bad and is hereby quashed.

12. Special Judge, SC/ST Act, Kaushambi
is directed to issue fresh summoning order in
accordance with law.

13. Registrar General is directed to
circulate this order to all the Judicial
Magistrates in the State through District
Judges to ensure strict compliance of
provisions of Cr.P.C. as well as law laid down
by the Courts while issuing summoning
order, bailable or non-bailable warrants, as
the case may be.

14. With the aforesaid observations, appeal
is allowed.
1 All. Ram Prakash Vs. State of U.P.
933

15. No order as to costs.
----------
(2023) 1 ILRA 933
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 777 of 1991

Ram Prakash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Devendra Dahma, Sri Raj
Kumar Sharma (A.C.), Sri Rajeev Kumar
Singh 'Parmar'

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is settled law that in all
criminal cases, normal discrepancies are
bound to occur in the depositions of
witnesses
due
to
normal
errors
of
observation, namely, errors of memory
due to lapse of time or due to mental
disposition such as shock and horror at
the
time
of
occurrence.
Where
the
omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety. The court has to form its opinion
about the credibility of the witness and
record a finding as to whether his
deposition inspires confidence.
Minor
inconsistencies,
contradictions
and
embellishments in the evidence of witnesses
which do not effect the core of the case of the
prosecution, will not result in the court
discarding such evidence but where the
contradictions are serious and effect the very
core of the case of the prosecution, then such
evidence cannot be safely relied upon.

Indian Evidence Act, 1872- Section 3- It is
well
settled
that
the
evidence
of
interested or inimical witnesses is to be
scrutinised with care but can not be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
relying on the said evidence. It is also well
settled that interested evidence is not
necessarily unreliable evidence. All that is
necessary
is
that
the
evidence
of
interested witnesses should be subjected
to careful scrutiny and accepted with
caution. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased. In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon.

Where the evidence of a related or interested
witness
is
found
to
be
truthful
and
creditworthy then the same cannot be
disbelieved on the ground that the witness is
related to the victim , however evidence of
such witness has to be scrutinised with due
care and caution.

Indian Evidence Act, 1872- Section 8-
It is well settled that in case of direct
evidence,
motive
would
not
be
relevant
and
only
in
case
of
circumstantial
evidence,
motive
assumes great significance. In a case
in which the evidence is clear and
unambiguous and the circumstances
proves the guilt of the accused, the
same would not get weakened even if
the motive is not a very strong one.
The motive loses all its importance in a
case where direct evidence of eye
witnesses is available.