Lukman And Others vs State Of Haryana

Gurvinder Singh Gill, J

The petitioners namely Lukman, Jakkar and Rahishu seek grant of anticipatory bail in a case registered vide FIR No. 37 dated 16.7.2018 under Sections 363, 450 IPC and under Section 6 of POCSO Act 2012 at Police Station Women NIT, Faridabad, wherein they apprehend their arrest consequent upon having been summoned by the trial Court with the aid of Section 193 Cr.P.C., so as to face trial along with their co-accused Khuwaib.

The FIR was lodged at the instance of prosecutrix wherein she alleged that her marriage was solemnised with Nasim on 24.6.2018 and after her marriage she came back to her parental home at village Madalpur. On 14.7.2018, when she was sleeping in 'verandah' (courtyard) of her house, then at about 2:30 AM, Jakkar, Rahishu, Khuwaib and Lukman, who are all residents of her village came there and after gagging her mouth, forcibly made her sit in their car and took her to Gurgaon where all four of them committed rape upon her. It is alleged that thereafter they took her to Gandpur and then after leaving her at Sohna, fled away and from where her parents brought her back to her village Madalpur.

The matter was investigated by the police and upon conclusion of investigation, it was found that it is only Khuwaib who had committed the offences in question and consequently while presenting a chargesheet under Section 173 Cr.P.C. against Khuwaib, the remaining accused i.e. the petitioners were kept in column No. 2. The Area Magistrate, upon prima-facie, finding the case to be triable exclusively by the Court of Sessions, committed the case to the said Court. Upon an application having been filed by the prosecution under Section 193 Cr.P.C., the petitioners were ordered to be summoned by the trial Court vide order dated 18.09.2019 (Annexure P-6), leading to apprehension of the petitioners regarding their arrest.

The learned counsel for the petitioners has submitted that the petitioners have falsely been implicated in the present case on account of political rivalry in the village and that it is a case where the prosecutrix had left her house along with co-accused Khuwaib and the said co-accused, in his disclosure statement(Annexure P-3), has also admitted the said fact and has stated that the petitioners had not raped the victim. The learned counsel has further submitted that in any case since the petitioners have been summoned with the aid of Section 193 Cr.P.C. i.e. post presentation of challan, their custodial interrogation is not required and as such their detention is neither necessary nor will serve any useful purpose. The learned counsel, in order to hammer forth his aforesaid submission, has placed reliance upon 2013(4) RCR(Criminal) 948(SC) Vikas vs. State of Rajasthan and 2015(3)RCR(Criminal) 950(Pb. & Hr.) Bajinder Singh vs. State of Punjab.

During the course of arguments, the learned counsel also cited a judgement delivered by Constitution Bench of Hon'ble Supreme Court i.e. 2013(3) RCR(Criminal) 787 Dharam Pal vs. State of Haryana and contended that since the committing Magistrate had already taken cognizance of the matter, the Court of Sessions, to whom the case was commited, had no jurisdiction to summoning the petitioners with the aid of Section 193 Cr.P.C., and as such the order dated 18.9.2019 (Annexure P-6), being without jurisdiction, the petitioners in any case are entitled to anticipatory bail.

On the other hand, the State counsel, while opposing the petition has submitted since it is a case where the prosecutrix had categorically named the petitioners in FIR and had also reiterated her allegations when her statement was recorded in terms of Section 164 Cr.P.C., therefore, the trial Court at the very outset, immediately upon commitment of the case, proceeded to summon the petitioners as their involvement was writ large on the facts of the case. It has further been submitted that in view of the serious nature of offence where the victim is a minor, no case for grant of anticipatory bail is made out.

Since a submission has been raised on behalf of the petitioners that the order dated 18.9.2019 (Annexure P-6), vide which the petitioners have been summoned, has been passed by the Court without jurisdiction, therefore, the said submission needs to be considered at the very outset. The learned counsel has mainly based his argument on judgment rendered by Hon'ble Supreme Court in Dharam Pal's case (supra), while contending that since the committing Magistrate, at the time of committing the case to the Court of Sessions, had already taken cognizance of the case, the Court of Sessions could not have taken cognizance again and consequently there was no occasion for the Court of Sessions to exercise powers in term of Section 193 Cr.P.C. which can only be exercised at the time of taking cognizance. It has, thus, been submitted that the Court of Sessions could not have summoned the petitioners at that stage.

I have considered the aforesaid submission and have also perused the judgment in Dharam Pal's case (supra). The Constitution bench had framed specific questions pertaining to power of the Court of Sessions to summon additional accused at the stage of taking cognizance in terms of Section 193 Cr.P.C. The relevant extract from para 4 from the cited judgment reads as follows:

" 4. The questions which require the consideration of the Constitution Bench are as follows :

i) x x x

ii) x x x

iii) x x x

iv) Can the Session Judge issue summons under Section 193 Criminal Procedure Code as a Court of original jurisdiction?

v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? "

Hon'ble Supreme Court, while answering the aforesaid questions in para 27 and 28 in Dharam Pal's case (supra), held as follows:

"27. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.

In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh's case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein."

The Hon'ble Supreme Court, thus, while observing that when a Magistrate commits a case to the Court of Sessions, he is performing some kind of a passive role and cannot be said to have taken cognizance of the matter, held that it is the Court of Sessions which would take cognizance upon the case having been committed to it and consequently, would be competent and have jurisdiction to summon additional accused at the very initial stage on the basis of the material available in report filed under Section 173 Cr.P.C. As such, the contention raised on behalf of petitioners that the Court of Session was not competent to summon additional accused cannot be accepted and is hereby repelled.

The question as to whether issuance of non-bailable warrants for securing presence of the petitioners was justified in the present case or as regards their entitlement for grant of anticipatory bail can be better appreciated in light of judgments of Hon'ble Supreme Court wherein such like issues have been considered.

In 1976(3) SCC 1 State of U.P Vs. Poosu and another, Hon'ble Supreme Court examined the question of propriety of issuing non-bailable warrants for effecting arrest of a person who had been acquitted but against whom an appeal challenging his acquittal was pending. Hon'ble the Supreme Court, while answering the question in affirmative to the effect that such a person could be arrested held as follows:

"13. Thus there can be no doubt that this Court while granting special leave to appeal against an order of acquittal on a capital charge is competent by virtue of Article 142 read with Article 136, to exercise the same powers which the High Court has under Section 427. Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the Court would take into account the various factors, such as, "the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and State" - see The State v. Jagjit Singh, (1962) 3 SCR 622. In addition, the Court may also take into consideration the period during which the proceedings against the accused were pending in the courts below and the period which is likely to elapse before the appeal comes up for final hearing in this Court. In the context, it must be remembered that this overriding discretionary jurisdiction under Article 136 is invoked sparingly, in exceptional cases, where the order of acquittal recorded by the High Court is perverse or clearly erroneous and results in a gross miscarriage of justice.

Nor do we find any merit in the contention that an order directing the re-arrest and detention of an accused-respondent who had been acquitted by the High Court of a capital offence, in any way, offends Article 21 on any other fundamental right guaranteed in Part III of the Constitution. Such an order is made by this Court in the exercise of its plenary jurisdiction conferred by Articles 136 and 142 of the Constitution. By no stretch of imagination can it be said that such an order deprives the accused-respondent of his liberty in a manner otherwise than in accordance with procedure established by law."

In 2007(12) SCC 1 Inder Mohan Goswami & another Vs. State of Uttaranchal & others , although the controversy was as regards quashing of FIR registered for offences under Sections 420 and 467 IPC, but the Supreme Court also examined the question as to when warrants of arrest should be issued and held as follows:

"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.

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 non-bailable warrants.

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 straight-jacket 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.

The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant."

In 2013(4) RCR(Criminal) 948 Vikas vs. State of Rajasthan(SC), the Hon'ble Supreme Court considered the question as to whether presence of an accused could have been best secured by issuing a summon simplicitor or a bailable warrant instead of a non-bailable warrant, pursuant to an application under Section 319 Cr.PC. having been accepted by the trial Court. The Supreme Court, while holding that there cannot be any straight-jacket formula for issuance of warrants discussed the issue as follows:

"13. A Perusal of Section 319 of the Criminal Procedure Code would clearly indicate that on the objective satisfaction of the court a person may be 'arrested' or 'summoned' as the circumstances of the case may require if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. The court should exercise judicial discretion on a consideration of the totality of the facts and circumstances of a given case and in a manner where proper procedures are followed that are fundamental to the right of fair trial of the accused. The section demands more circumspection by the Trial Court while exercising its powers since it confers an extraordinary power and should be used by the court very sparingly thereby ensuring that principles of rule of law and basic tenets of criminal law jurisprudence are not vitiated.

The Constitution of India is the grundnorm the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution. Therefore, Criminal Law also derives its source and sustenance from the Constitution. The Constitution, on one hand, guarantees the Right to Life and Liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in the case of Inder Mohan Goswami; 2007(12) SCC 1 and in the case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Anr; (2012)9 SCC 791 wherein it has been observed that personal liberty and the interest of the State Civilised countries 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 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 the Procedure prescribed by law. The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, this demands that the courts have to be extremely careful before issuing non-bailable warrants.

In order to examine the reasoning of the Trial Court, the case is to be understood in its own facts and circumstances. In the instant case, the Trial Court after appreciating the evidence available had reasonable satisfaction from the evidence already collected during the trial that the appellant had committed an offence along with the other accused who had undergone the Trial and therefore issued a non-bailable warrant to seek the attendance of the appellant-herein under an application of Section 319 of the Criminal Procedure Code. To appreciate the present case, it is pertinent to discuss the meaning of 'bailable offences' and the circumstances in which a non-bailable warrant can be issued. In the legislative history for the purposes of bail, the term 'bailable' and 'non-bailable' are mostly used to formally distinguish one of the two classess of cases, viz. 'bailable' offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodized by analogy, disciplined by system and sub-ordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 of the Criminal Procedure Code. The power under Section 319 of the Cr.P.C 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 straight-jacket formula for issuance of warrants but as a general rule, unless an accused 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. The conditions for the issuance of non-bailable warrant are re- iterated in the case of Inder Mohan Goswami (Supra) and in the case of State of U.P v. Poosu and Anr; 1976(3) SCC 1, wherein it is mentioned that 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 firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Criminal Procedure Code would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case.

The court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued."

This Court while following Vikas's case (supra), held as follows in 2015(3) RCR(Criminal) 950, Bajnder Singh Vs. State of Punjab :

"7. There can, thus, be no doubt that the trial court committed no error in summoning the petitioners as additional accused in the instant case as their names figured in the FIR and specific role has been attributed to them. The question, however, remains whether they are entitled to concession of pre-arrest bail. For considering this question, principles laid down in Gurbaksh Singh Sibbia's (supra) need to be recalled. It was held therein that jurisdiction under Section 438 Cr.P.C. has to be exercised by wise and careful use of discretion. In case an accused has a reason to believe that he would be arrested for a non bailable offence, he would be entitled to invoke the provisions of Section 438 Cr.P.C. Though no hard and fast rule can be laid down for exercise of this power, it would be taken on facts and circumstances of each case. In the case in hand, since petitioners have been summoned to face trial for offence under Section 302 I.P.C., on their appearance before the court, they have a reasonable apprehension that they would be taken in custody. Thus, plea for anticipatory bail is not misconceived. Article 21 of the Constitution guarantees the right to life and liberty to its citizens. Criminal law derives its source and substance from the Constitution. All other laws are supplementary and incidental to the principles laid down in the Constitution (see Vikas v. State of Rajasthan's case (supra) paras 13, 14). Thus, such additional accused who do not intend to defy law and are ready to face trial, their plea for anticipatory bail can be considered, subject to the principles already laid down in Gurbaksh Singh Sibbia's case (supra). Though Section 438 Cr.P.C. does not confer a right on such accused to be granted discretionary relief of anticipatory bail, their plea would deserve consideration within the available parameters. If appearance of additional accused can be secured and the court is satisfied that they would cooperate during the proceedings, their plea for anticipatory bail can be accepted. It also needs to be emphasised that at the stage of Section 319 Cr.P.C., some deposition of prosecution witness(s) is before the court and on consideration of same additional accused are summoned. However summoning under Section 193 Cr.P.C. is only on the basis of material accompanying the report under Section 173 Cr.P.C. On perusal of same, additional accused are arraigned. Thus, such accused are entitled to pray for anticipatory bail on the ground that their role was examined by the investigating agency but they were found innocent."

It thus emerges that there can be no straight jacket formula pertaining to the mode through which the presence of an accused is to be secured especially where a person is sought to be summoned as an additional accused while invoking powers under Sections 193 or 319 Cr PC. Infact, the very language of Section 319 Cr.P.C. indicates that the decision in this regard is to be taken on the basis of circumstances of the case. Section 319 Cr.P.C. reads as follows:

POWER TO PROCEED AGAINST OTHER PERSONS APPEARING TO BE GUILTY OF OFFENCE. -

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then -

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

The powers in respect of summoning an additional accused under Sections 319 Cr.P.C. and 193 Cr.P.C. are exercised at different stages inasmuch as power under Section 319 Cr.P.C. can be exercised only after some evidence has been recorded after framing of charges whereas jurisdiction under Section 193 Cr.P.C. may be invoked immediately after the case is committed to the Court of Sessions. However, no distinction can be discerned in the matter of mode of issuance of process pursuant to exercise of powers under Section 319 Cr.P.C. or Section 193 Cr.P.C. and a decision as to whether summons or bailable warrants or as to non-bailable warrants are to be issued would depend upon facts and circumstances of each case. It is a discretion left best to the trial Court which is to be exercised independently in each case regard being had to various attending circumstances. Hon'ble Supreme Court in AIR 1962 Supreme Court 253 State v. Captain Jagjit Singh, held that the Court would take into account the various factors, such as, the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and State, while exercising such discretion.

Based on aforesaid decisions, some guiding factors to be borne in mind while reaching at such a decision could be spelt forth as follows, which certainly are not exhaustive:

(i) when a Court, in a complaint case, pursuant to finding sufficient grounds to summon an accused, chooses to proceed against the accused, ordinarily the process for securing his presence should be by way of issuance of summons in the first instance. However, if the accused despite being served does not cause appearance, the trial Court may proceed to issue bailable warrants and thereafter non-bailable warrants;

(ii) ordinarily, in a case where an accused is summoned with the aid of Section 193 Cr.P.C. or Section 319 Cr.P.C., and where his detention is not likely to serve any useful purpose, regard being had to the fact that investigation has already concluded, his presence for holding trial against him can be secured by issuance of summons in the first instance barring cases of exceptional circumstances as stated in forthcoming paras;

(iii) the aforesaid guideline regarding issuance of summons is not an absolute rule and in a given case the trial Court may deviate from the ordinary practice of issuance of summons in view of some other compelling circumstances including the heinous nature of crime, the conduct of the accused, antecedents of the accused etc.;

(iv) in a given case the manner in which the crime has been committed - say a brutal murder, may itself give some insight into psyche of the accused and, if suggestive of a potent criminal bent of mind and likelihood of repetition of crime, his release would not be in societal interest;

(v) likelihood of the accused making an attempt to threaten or intimidate the complainant or witnesses;

(vi) likelihood of the accused absconding and fleeing from justice;

(vii) the Court to also minutely examine that a person kept in column no.2 has not been kept in column No. 2 due to some extraneous reasons in an attempt to shield such accused since keeping such accused in column no.2 would, in any case, enhance the chances of his getting bail even if subsequently he is summoned as an accused, which otherwise in a case of serious offence he may not have got under Section 438 of 439 Cr.P.C.

The aforesaid factors, which are required to be taken into account while taking a decision as to whether in a given case summons are to be issued or warrants of arrest are to be issued, would apply with equal force even while considering a case for grant of anticipatory bail where an accused has been summoned post presentation of chargesheet under section 173 Cr.P.C. It needs to be emphasized again and reiterated that there is no such absolute rule that in every case where an accused is called to face trial with the aid of Section 319 Cr.P.C. or Section 193 Cr.P.C. he is entitled to grant of anticipatory bail in all circumstances merely on account of the fact that investigation has concluded. While there can possibly be no dispute that personal liberty of a citizen is paramount, but some kind of balance is also required to be maintained when pitted against security and interest of society. No straight jacket formula can be devised. As already stated above each case is required to be examined on the basis of its facts and attending circumstances.

Reverting back to the facts of the present case, while the prosecutrix has named 4 accused in the FIR, the investigating agency presented challan against only one of them and kept the remaining three i.e. the petitioners in column No. 2. As per prosecutrix she was married a few months back and on the day of occurrence she was present in her parental home. It is alleged that the accused entered her house and after gagging her mouth forcibly made her sit in a car and took her away to Gurgaon where she was raped by all four of them. During the course of investigation, the police collected CCTV footage from some cameras installed near the parental house of prosecutrix and interestingly it has been informed that the CCTV footage shows the prosecutrix coming out of her house voluntarily with Khuwaib whereas the allegations are that all the four accused had entered her house, gagged her and forcibly taken her away. It has been informed that the petitioners are not seen in the said footage. The learned counsel for the accused has today furnished a copy of the three 'zimnis' including 'zimni' dated 20.10.2018 recorded by the police wherein the aforesaid CCTV footage is referred to. The same are taken on record. In view of aforestated position, the presence of petitioners at the place of alleged abduction is rendered debatable. Further, the fact that the prosecutrix, shortly after her alleged abduction, was taken to village Gandpur (Rajasthan), where relatives of accused Khuwaib reside, would also tend to show the involvement of Khuwaib in the occurrence. The facts do not suggest that it is a case of any preplanned crime where four persons had abducted a girl to commit offence of gang-rape. Had the purpose been of gang-rape, then the prosecutrix would not have been taken to Gandpur in Rajasthan to the house of Khuwaib's relative on the very next day of occurrence.

Having regard to the aforesaid facts and circumstances, in my opinion, it is a fit case for grant of anticipatory bail. The petition, as such is accepted and the petitioners, in the event of their surrendering before the trial court within a week from today shall be released on bail subject to their furnishing bail bonds and surety bonds to the satisfaction of trial Court, which may impose any such condition as deemed appropriate for ensuring their presence regularly before the trial Court.

It is, however, clarified that none of the observations made above shall be construed to be an expression on merits of the main case.