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NBW | Magistrate Must Ascertain Whether Accused 'Intentionally' Avoided Investigation, Can't Simply Rely On Statement In Chargesheet: Kerala HC
Rubayya Tasneem
31 Jan 2024 3:45 PM IST
The Kerala High Court has made it clear that the process for securing presence of an accused, as laid down by the Supreme Court in Satendar Kumar Antil v. CBI. is mandatory and an exception from the approach, where accused has not cooperated in the investigation, is available only after the Magistrate ascertains the factum of accused's absence independently.Justice Bechu Kurian Thomas said the...
The Kerala High Court has made it clear that the process for securing presence of an accused, as laid down by the Supreme Court in Satendar Kumar Antil v. CBI. is mandatory and an exception from the approach, where accused has not cooperated in the investigation, is available only after the Magistrate ascertains the factum of accused's absence independently.
Justice Bechu Kurian Thomas said the SC directions cannot be avoided by a mere statement in the final report that the accused had not co-operated with the investigation or had absconded.
"Even in such cases, the Magistrates are bestowed with the duty to ascertain whether the accused had intentionally kept himself aloof from the proceedings," the bench added.
In Satendar Kumar (supra), the Supreme Court had categorized cases into 4 sections. Category A dealt with offences punishable with imprisonment of 7 years or less under which the petitioner falls. Satendar Kumar's decision requires summons to be issued in category A offences first before issuing warrant. A non-bailable warrant is only issued if the accused does not appear despite being served with both a summons and a bailable warrant.
SC had also clarified that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, the aforesaid approach cannot give them benefit.
In the case at hand, the Magistrate court had issued warrant against the petitioner-accused without issuing summons. It had relied on a statement in the final report that the petitioner had not co-operated with the investigation from the crime stage itself.
The petitioner was charged under Sections 323, 324, 341, 308 and 427 read with Section 34 of the IPC. Amongst the provisions, Section 308 stipulates maximum punishment of up to seven years with fine. In this light the High Court observed,
"I am of the view that the learned Magistrate hastily came to the conclusion that even if the summons is issued, presence of A3 cannot be ensured before the court. According to me Category-A cases speci"ed in Satendar Kumar Antil's Case (supra), require an ordinary summons to be issued at the "rst instance and permission can even be granted for appearance through a lawyer and if the accused does not appear despite service of summons, a bailable warrant has to be issued initially and if even after the bailable warrant, there is failure to appear, only then should a non-bailable warrant be issued. All these procedures are intended to ascertain whether the accused had consciously avoided from appearing before the court. Of course, in appropriate cases, the Magistrate can issue non bailable warrants to the accused. However, such instances must be con"ned to exceptional situations."
Thus, the Court allowed the petition and said since the petitioner may be granted an opportunity to appear before the Magistrate without the threat of a remand looming over his head.
Counsel for Petitioners: Advocates Mansoor BH and Sakeena Begum
Counsel for Respondents: Advocate MC Ashi, Public Prosecutor
Case Title: Rahul R v. State of Kerala & Anr.
Case Number: Crl MC No. 821 of 2024
Citation: 2024 LiveLaw (Ker) 79
