Rajasthan HC To Initiate Action Against Magistrate Who Issued Arrest Warrant In Defiance To Its Anticipatory Bail

ORDER OF RAJASTHAN HIGH COURT

• The Rajasthan High Court has ordered action a Magistrate who issued arrest warrant against two accused who were on anticipatory bail granted by the High Court
• The High Court order was passed on November 9, 2020 on a petition by the accused for quashing of the Magistrate’s order dated 11/01/2019
• The Magistrate had refused to take back the arrest warrant on premise that he does not have the power to convert the non-bailable warrants to bailable warrants as it would be in violation of section 362 Cr.P.C.

BACKGROUND OF THE CASE

• The petitioners (accused in the lower court case) Nanuram Saini and Vinod Kumar had FIR registered against them on charges of cheating
• The petitioners/accused were thereafter granted anticipatory bail in 2003 in connection with the FIR
• However, the Magistrate, Khetri issued arrest warrants against the petitioner/accused
• On being informed about the anticipatory bail and being requested to convert the arreast warrant into bailable warrants in terms of Section 70(2) Cr.P.C., the Magistrate expressed his inability to do so in order dated 03/09/2020
• Thereafter, the petitioner/accused moved the High Court for quashing of the Magistrate’s order

MAGISTRATE'S REFUSAL TO CONVERT THE ARREST WARRANT INTO BAILABLE WARRANTS

• After coming to know about the arrest warrants, the petitioner/accused informed the Magistrate about the anticipatory bail granted by the High Court
• The petitioners/accused also requested it to convert the arrest warrants into bailable warrants in terms of Section 70(2) Cr.P.C.
• The Magistrate expressed his inability on the premise that he does not have the power to convert the arrest warrants in to bailable warrants
• The Magistrate also mentioned that doing so would amount to refusing to recall its earlier order, which is barred in terms of Section 362 Cr.P.C.
• Section 362 Cr.P.C. reads: “Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

PETITION BEFORE THE HIGH COURT

• On issuance of further arrest warrant by Magistrate in order dated 03/09/2020, the petitioners/accused moved the High Court
• The Counsel for petitioner/accused primarily relied on the case of Sushila Agarwal &Ors V. State (NCT of Delhi) &Anr., while submitting that the anticipatory bail granted by court shall continue till end of the trial
• In the Sushila Agarwal case, the Hon’ble Supreme Court had settled that
• "As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial."

ORDER OF THE HIGH COURT

• In accordance with the Sushila Agarwal case, the High Court held that the Magistrate’s order dated 03/09/2020 is in clear violation of the orders passed by the High Court after having granted anticipatory bail.
• The Court also held that the provisions of Section 362 Cr.P.C. cannot come into operation while deciding the application under Section 70 (2) Cr.P.C.
• The High Court also directed the Registrar (Vigilance) to initiate action against the Magistrate.

(HIGH COURT'S ORDER)

"......the action of the learned Magistrate from the date, it has taken cognizance and upto passing of the impugned order dated 3.9.2020 has acted in clear violation of the orders passed by the High Court after having granted anticipatory bail. There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it. Learned Magistrate has insisted on issuing of the arrest warrants and it is also seen that the provisions of Section 362 Cr.P.C. cannot come into operation while deciding the application under Section 70(2) Cr.P.C, The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law. …A copy of this order be sent to the Registrar (Vigilance) for placing it before the concerned Committee to decide what course of action is required to be done as against such Magistrate."