# Praveen Kumar Singh @ Praveen Singh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-20
- **Case number:** Application U/S 482/378/407 No. 5475 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-singh-praveen-singh-ors-v-state-of-u-p-ors-47654
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 147, 148, 354, 452, 323,
504 & 506 , The Protection of Children
From
Sexual
Offences
Act,
2012
-
Section
7/8
,
The
Scheduled
Castes/Scheduled
Tribes
(Prevention
from Atrocities) Act, 1989 - Sections 3
(i) (r), 3 (i) (s), 3 (ii) (v) - if any accused
person has not been arrested during
investigation and has cooperated with
the investigation, there is no need to
arrest him after filing charge sheet,
particularly, if the nature of offences is
not so serious - arrest is not mandatory
in all cases and if the accused person is
cooperating with investigation, there is
no need to arrest . (Para - 10)

Quashing of Charge-sheet , summoning order,
non-bailable
warrant
including
the
entire
proceeding - applicants/ petitioners have not
been arrested during investigation - status of
accused described - police granted bail - fully
co-operated with the investigation - criminal
case being lodged against the petitioners as a
counter blast being a cross case.(Para - 4)

HELD:-The courts have to be extremely careful
before issuing non-bailable warrants. In the
order where the bailable/ non-bailable warrant
or proclamation under Section 82 Cr.P.C. is
issued, the court must indicate that despite the
service of summons or bailable warrant or nonbailable warrant the accused has not appeared.
In the absence of such indication the coercive
orders, would be treated as if they failed the
test of statutory prescriptions prescribed under
Sections 64 & 65 of the Cr.P.C. . (Para - 13)

Petition disposed of finally. (E-7)

List of Cases cited:-

## Text

254 INDIAN LAW REPORTS ALLAHABAD SERIES
Central Bureau of Investigation & Anr,
Petition(s) for Special Leave to Appeal
(Crl.) No(s).5191/2021.

41. In view of the aforesaid terms, all
the three petitions are disposed of finally.
----------
(2022)01ILR A254
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 5475 of 2021

Praveen Kumar Singh @ Praveen Singh &
Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Agendra Sinha, S.D. Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 147, 148, 354, 452, 323,
504 & 506 , The Protection of Children
From
Sexual
Offences
Act,
2012
-
Section
7/8
,
The
Scheduled
Castes/Scheduled
Tribes
(Prevention
from Atrocities) Act, 1989 - Sections 3
(i) (r), 3 (i) (s), 3 (ii) (v) - if any accused
person has not been arrested during
investigation and has cooperated with
the investigation, there is no need to
arrest him after filing charge sheet,
particularly, if the nature of offences is
not so serious - arrest is not mandatory
in all cases and if the accused person is
cooperating with investigation, there is
no need to arrest . (Para - 10)

Quashing of Charge-sheet , summoning order,
non-bailable
warrant
including
the
entire
proceeding - applicants/ petitioners have not
been arrested during investigation - status of
accused described - police granted bail - fully
co-operated with the investigation - criminal
case being lodged against the petitioners as a
counter blast being a cross case.(Para - 4)

HELD:-The courts have to be extremely careful
before issuing non-bailable warrants. In the
order where the bailable/ non-bailable warrant
or proclamation under Section 82 Cr.P.C. is
issued, the court must indicate that despite the
service of summons or bailable warrant or nonbailable warrant the accused has not appeared.
In the absence of such indication the coercive
orders, would be treated as if they failed the
test of statutory prescriptions prescribed under
Sections 64 & 65 of the Cr.P.C. . (Para - 13)

Petition disposed of finally. (E-7)

List of Cases cited:-

1. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal & ors. , (2007) 12 SCC 1

2. Satender Kumar Antil Vs C.B.I. & Anr,
Petition(s) for Special Leave to Appeal (Crl.)
No(s).5191/2021

3. Aman Preet Singh Vs C.B.I. through Director,
Criminal Appeal No.929 of 2021

4. Court on its own Motion Vs C.B.I., (2004) 72
DRJ 629

5. Siddharth Vs The St. of U.P.& anr., Criminal
Appeal No.838 of 2021 (arising out of SLP (Crl.)
No.5442/2021)

6. Joginder Kumar Vs St. of U.P. & ors, (1994) 4
SCC 260

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri S.D. Singh, learned
counsel for the petitioners and Sri Ran
1 All. Praveen Kumar Singh @ Praveen Singh & Ors. Vs. State of U.P. & Ors.
255
Vijay
Singh,
learned
Additional
Government Advocate for the State.

2. In view of the proposed order, the
notice to opposite party No.3 is hereby
dispensed with.

3. By means of this petitioner, the
petitioners have prayed for quashing the
Charge-sheet dated 30.11.2018, arising
out of Case Crime No.333 of 2018, under
Sections 147, 148, 354, 452, 323, 504 &
506 I.P.C., Section 7/8 of Protection of
Children from Sexual Offences Act and
Sections 3 (i) (r), 3 (i) (s), 3 (ii) (v) of
SC/ST Act, Police Station-Gauriganj,
District-Amethi,
as
well
as
the
summoning order dated 22.07.2019 and
non-bailable warrant dated 06.09.2021
issued by the learned Additional Session
Judge/ Special Judge, POCSO Act, Court
No.1,
District-Sultanpur
in
Special
Session Trial No.407 of 2019 (State vs.
Praveen Singh & others) including the
entire proceeding.

4.

Learned
counsel
for
the
petitioners, at the very outset, has
submitted that the present applicants/
petitioners have not been arrested and as
per the charge-sheet where the status of
accused has been described, it says that
the police has granted bail. Therefore, for
all practical purposes the petitioners have
not been arrested during investigation.
Further, they have fully co-operated with
the investigation. This is a criminal case
being lodged against the petitioners as a
counter blast being a cross case.

5.

Learned
counsel
for
the
petitioners has drawn attention of this
Court towards Annexure No.3 of this
petition, which is an order-sheet
which indicates that the petitioners were
absent on 02.07.2021 then bailable
warrant of Rs.10,000/- was issued, again
on the next date i.e. 06.09.2021 the nonbailable warrant has been issued against
the petitioners. The aforesaid order
issuing the non-bailable warrant dated
06.09.2021 is in violation of Section 65
Cr.P.C. inasmuch as the learned court
concerned
has
not
indicated
the
subjective satisfaction as to whether the
bailable warrant has been served upon the
petitioners or not. The law is clear that if
despite the service of bailable warrant
upon the accused person, he/ she does not
appear, the non-bailable may be issued.

6. On that, the attention has been
drawn towards the dictum of Hon'ble Apex
Court rendered in re: Inder Mohan
Goswami and another vs. State of
Uttaranchal and others reported in (2007)
12 SCC 1 referring paras-51 to 56, which
read as under:-

"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
civilized 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.
256 INDIAN LAW REPORTS ALLAHABAD SERIES

When
non-bailable
warrants
should be issued

53. Non-bailable warrant should
be issued to bring a person to court when
summons of 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
courts
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
with extreme care and caution. The court
should properly balance both personal
liberty and societal interest before issuing
warrants. There cannot be any straightjacket 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."

7. Learned counsel for the petitioners
has further submitted that since the
petitioners have never been arrested during
investigation and have co-operated with the
investigation, therefore, as per the settled
proposition of law by Hon'ble Apex Court,
they should not be taken into custody after
filing of the charge-sheet

8. Per contra, Sri Ran Vijay Singh,
learned Additional Government Advocate
has opposed the aforesaid prayer of the
petitioners, but could not dispute the
aforesaid settled proposition of law.

9. Heard the learned counsel for the
parties and perused the record.

10. In view of the facts and circumstances
of the issue, let the petitioners be appeared
before the learned court below within a period
of four weeks from today and file appropriate
application and if the petitioners appear before
the learned court below within the aforesaid
stipulated time in terms of this order and move
appropriate application, the learned court below
shall
consider
and
decide
the
same
expeditiously, if possible on the same day
strictly in accordance with law and in the light
of dictum of Hon'ble Apex Court rendered in
1 All. Hemant Tiwari & Ors. Vs. State of U.P. & Anr.
257
re: Satender Kumar Antil Vs. Central Bureau
of Investigation & Anr, Petition(s) for Special
Leave to Appeal (Crl.) No(s).5191/2021 as well
as in the light of the judgment dated 02.09.2021
in re; Aman Preet Singh vs. C.B.I. through
Director, Criminal Appeal No.929 of 2021
(arising out of SLP (Crl.) No.5234/2021),
wherein the Apex Court has considered the
decision of Delhi High Court in re; Court on
its own Motion vs. Central Bureau of
Investigation (2004) 72 DRJ 629, wherein the
guideline was formulated that if any accused
person
has
not
been
arrested
during
investigation and has cooperated with the
investigation, there is no need to arrest him after
filing charge sheet, particularly, if the nature of
offences is not so serious. In the aforesaid
judgment, the Apex Court has considered its
own judgment in re; Siddharth vs. The State
of Uttar Pradesh & Anr., Criminal Appeal
No.838 of 2021 (arising out of SLP (Crl.)
No.5442/2021), whereby the Apex Court
considering the observation of the well
celebrated judgment in re; Joginder Kumar vs.
State of U.P. & Ors, (1994) 4 SCC 260, has
observed that the arrest is not mandatory in all
cases and if the accused person is cooperating
with investigation, there is no need to arrest.

11. Till the disposal of such application of
the petitioners, the non-bailable warrant shall not
be executed against them but if the petitioners do
not file application within four weeks, as
aforesaid, the benefit of this order may not be
given to them and the learned court below would
be at liberty to take appropriate coercive steps, as
per law.

12. Before parting with the matter, I must
observe that the learned court below must take
care of relevant facts before issuing the bailable
warrants,
non-bailable
warrants
and
proclamation under Section 82 Cr.P.C.

13. The Hon'ble Apex Court in re:
Inder Mohan Goswami (supra) has clearly
observed that 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. Further, in the order where the
bailable/
non-bailable
warrant
or
proclamation under Section 82 Cr.P.C. is
issued, the court must indicate that despite the
service of summons or bailable warrant or
non-bailable warrant the accused has not
appeared. In the absence of such indication
the coercive orders, as said above, would be
treated as if they failed the test of statutory
prescriptions prescribed under Sections 64 &
65 of the Cr.P.C.

14. Accordingly, the instant petition is
disposed of finally in terms of the aforesaid
order making it clear that I have not
decided the validity of the charge-sheet.
Therefore, the petitioners would be at
liberty to avail appropriate remedy before
appropriate court of law at various stages.
----------
(2022)01ILR A257
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 5691 of 2021

Hemant Tiwari & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rajesh Kumar, Rohit Kumar Tripathi