Naresh vs State of U.P.

R.K. Dash, J.—Heard counsel for the parties.

This application is filed u/s 482, Cr. P.C. with a prayer to direct the court below to accept fresh bail bond in case crime No. 8 of 2000, police station Kaushambi, district Kaushambi, since subsequently, the case has been converted to an offence of rape.

The prosecutrix (name omitted) lodged a report at police station Kaushambi, copy whereof at Annexure-1 alleging that the Petitioner came from behind and caught hold of her. On her raising cries, her father-in-law Phool Chand and others rushed to the spot whereafter the Petitioner made good his escape. On the basis of the said report, a case u/s 354, I.P.C. was registered. The Petitioner was admitted to bail by Special Chief Judicial Magistrate, Allahabad, as is evident from the order dated 4.3.2000, copy whereof is at Annexure-2. It is submitted by the learned Counsel for the Petitioner that subsequently, the police on the basis of the statement of the prosecutrix converted the case to one u/s 376, I.P.C., whereupon move was made to cancel the bail. The learned court below issued notice to the Petitioner for appearance but no notice was served upon him and he was not aware of such a move being made by the prosecution. The learned Magistrate, however, issued warrant of arrest against the Petitioner and this led him to approach this Court by filing the present petition.

Since sufficient materials were not produced by the Petitioner in support of the contention as aforesaid, I called for the lower court record for scrutiny. Having gone through the lower court record, I find that the learned Magistrate having closed his eyes to the provisions of law moved in a peculiar manner. It appears that on the petition of the Officer-in-charge of police station Sarai Aqil, Kaushambi, learned Magistrate passed order on the petition itself which is reproduced below:

Heard. Perused the case diary. Issue notice to the accused to appear on 6.9.2000. Put up for disposal same day.

Subsequent orders were passed not on the order-sheet but on the back side of the said petition, a perusal of which would reveal that on 27.11.2000, order was passed to issue warrant of arrest against the Petitioner. The said order is extracted below for reference:

At this stage, it is stated that notice has been served on accused but he is absent. As such, issue non-bailable warrant against the accused.

I may note, it is no where stated either in the orders passed on 27.11.2000 or on previous dates that there was personal service of notice upon the Petitioner. Without exhausting the normal mode of service of notice, learned Magistrate mechanically issued warrant of arrest against him and being apprehensive of arrest he has moved this Court for necessary relief.

The first information report was lodged by no other than the prosecutrix herself and in the said report, she did not make any allegation that she was ravished by the Petitioner. In course of investigation, her statement was got recorded where she made certain improvement on the basis of which the Investigating Officer prayed the court below that it being a case of rape punishable u/s 376, I.P.C., steps may be taken to arrest the Petitioner. It need not be emphasised that by a long catena of decisions, it has been held by this Court that once the accused is released on bail, he should not be arrested and straightway taken into custody in the very case if the offence is altered to a grievous one triable by the court of session. The learned Special Chief Judicial Magistrate being a senior Judicial Officer should have kept himself alive of the legal position before taking steps as aforesaid on the asking of the Investigating Officer. Court should not act as the prosecution desires, but it should move as the law demands.

Regard being had to the facts and circumstances of the case, I would hold that it would be abuse of process of law if the order passed by the learned court below issuing warrant of arrest against the Petitioner is not quashed.

Resultantly, the criminal misc. application is allowed. The impugned order issuing warrant of arrest against the Petitioner on the basis of the petition moved by the Investigating Officer is quashed. The Petitioner be allowed to continue on previous bail so long as he abides by the conditions of the bail bond furnished by him. Send a copy of this judgment to the District Judge, Allahabad, for his information on administrative side.