1 2025:CGHC:49723 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1402 of 2021 1 - Ashish Dubey S/o Shri Adalat Prasad Dubey, Aged About 46 Years, Occupation- Service, Presently Working As-Asst. Manager, Mahindra and Mahindra Financial Services Limited Branch- Bhilai, Priya Darshani Parisar, Bhilai, District- Durg, Chhattisgarh, District : Durg, Chhattisgarh ... Petitioner versus 1 - The State of Chhattisgarh Through- The Superintendent of Police, District- Durg, Chattisgarh, District : Durg, Chhattisgarh 2 - Gajendra Singh Chandrakar S/o Shri Narayan Singh Chandrakar, Aged About 46 Years, R/o Village and Post Gerkapar, Tahsil- Gunderdehi, P.S.- Anda, District- Durg, Chhattisgarh, District : Durg, Chhattisgarh ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Pragalbha Sharma, Advocate. For State : Ms. Laxmeen Kashyap, Panel Lawyer. For Respondent No.2 : None. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 06/10/2025 1. The instant criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure, 1973 (in short “CrPC”), is filed by the petitioner against the order dated 10-10-2014 (Annexure P-2), passed by the learned 6 th Additional Sessions Judge, Durg, in Criminal Revision No. 260/2013, whereby the criminal revision filed by the petitioner is dismissed and the order dated 08-10-2013 passed by the learned Judicial Magistrate First Class, Durg (in short “JMFC”), in unregistered complaint case (Gajendra Digitally signed by MOHAMMED AADIL KHAN Date: 2026.01.06 14:08:12 +0530 2 Singh Chandrakar v. Leindan I. Kalikar and Others) has been affirmed. The petitioner has also challenged the entire proceeding of Criminal Case No. RCC 12226/2016, including the order dated 17-11-2016 (Annexure P-1), pending before the learned JMFC, Durg. 2. The brief facts of the case are that the petitioner is an accused in the Criminal Case No. 12226/2016, pending before the learned JMFC, Durg, for the offences under Sections 392, 120-B, 384, 506-B, 34 of the IPC, and Section 4 of the MP/CG Protection of Borrowers Act, 1937. The petitioner is working as an Assistant Manager at Mahindra & Mahindra Financial Services Limited (hereinafter referred to as “the finance company”). The Respondent No. 2 availed a loan facility for the purchase of a tractor bearing registration No. CG-07-N-1382, and a loan agreement was executed on 29-06-2008. When the Respondent No. 2 failed to repay the instalments of the loan, the notices were issued to him for repossession of the vehicle. On 05-06-2010, the Respondent No. 2 submitted an undertaking that he will appear on 07-06- 2010 for the settlement of the loan amount or else, he would surrender the vehicle to the finance company. Under the terms of the agreement, the vehicle of the Respondent No. 2 was repossessed, and an intimation was also given to the police authorities on 18-11-2011. Thereafter, the Respondent No. 2 availed the remedy of filing a complaint before the District Consumer Dispute Redressal Forum, Durg, where his complaint was dismissed on 12-11-2013. The appeal filed by him was also dismissed vide order dated 01-10-2015 by the Chhattisgarh State Consumer Dispute Redressal Commission, Raipur. Apart from the proceedings before the consumer forum, the Respondent No. 2 has also filed a Complaint Case before the learned JMFC, Durg, for commission of the offences under Section 392, 120-B, 384, 506-B, 34 of the IPC, and Section 4 of the MP/CG Protection of Borrowers Act, 1937. Initially, the complaint case was dismissed for want of prosecution on 08-10-2013, but the same was restored by the 3 order dated 10-10-2014 passed by the learned revisional court in the Criminal Revision filed by the Respondent No. 2. After restoration of the complaint case, the learned JMFC, Durg, ordered for registration of the complaint case and directly issued non-bailable warrant against the petitioner and other co-accused persons, vide its order dated 17-11-2016. Hence, this petition in which the petitioner challenged the entire proceeding of the criminal case. 3. Learned counsel for the petitioner would submit that the learned revisional court has erroneously exercised the revisional jurisdiction against the dismissal of the complaint case for want of prosecution. The dismissal of the complaint case for want of prosecution amounts to an acquittal of the accused persons as provided under Section 256 of the CrPC, and against which the acquittal appeal would lie under Section 378 of the CrPC. On the basis of erroneous exercise of jurisdiction by the learned revisional court, the complaint case was restored and registered by the learned trial court vide order dated 17-11-2016, and a non-bailable warrant was issued against the petitioner and other co-accused persons. He would also submit that after registration of the complaint case, the learned trial court should have issued a summons first, and after service of summons and bailable warrant against the accused persons, the non-bailable warrant can be issued, if the accused persons do not appear in the proceeding after service of summons and bailable warrant. The purpose of issuing a summons or bailable/non-bailable warrant is to secure the presence of the accused persons in the proceeding. Issuing the non-bailable warrant directly after registration of the complaint case would prejudice the accused/petitioner. He would further submit that from the allegation made in the complaint, no offence prima facie would be made out to register the complaint case, as the same would be of a Civil nature. It is also submitted that the claim of the Respondent No. 2 is dismissed by the District Consumer Forum and the State Consumer 4 Commission. Only to create pressure upon the accused persons, the complaint case is filed. The petitioner acted under the terms of the agreement, and if there is any breach of the agreement, the opposite party has every right to invoke the terms and conditions of the agreement. The Respondent No. 2 is having a Civil remedy to sue for compensation or for any other remedy, but does not have the remedy of a criminal complaint case. Therefore, the entire proceeding is bad in law, and the same is liable to be quashed. 4. On the other hand, learned counsel appearing for the Respondent No. 2 submits that the vehicle of the Respondent No. 2 was forcefully possessed by the petitioner and his employees. There is no condition in the agreement for forceful possession of the vehicle. He would also submit that the document dated 05-06-2010, which is annexed at page No. 69 of the petition, has not been executed by the Respondent No. 2, and it is a fabricated document. On 18-01-2011, the tractor of the Respondent No. 2 was snatched by the petitioner and his employees by force, and they threatened him. He made a police complaint also, and when the police had not taken any action, he filed the complaint case before the learned JMFC, Durg. He would further submit that the complaint case of the Respondent No. 2 was dismissed for want of prosecution on 08-10-2013, and by the order passed by the revisional court, the same is restored. On 08-10-2013, there was heavy rain, and the canal was full of water, and the roads were blocked due to the flooding situation, for which the Respondent No. 2 could not appear in the proceeding. The reasons for his non-appearance were considered by the revisional court as a sufficient explanation, and the complaint case was restored vide order dated 10-10-2014. Since the complaint case was not registered at that time and a process was not issued, the revisional court has not issued notices to the accused persons. After considering the entire material available in the complaint case, the learned JMFC has passed the 5 order for registration of the complaint case and issued a non-bailable warrant against the accused persons. The alleged offences are cognizable offences and therefore, the issuance of a non-bailable warrant against the accused persons is justified and thus, there is no merit in the petition, and the same is liable to be dismissed. 5. Learned counsel for the Respondent No. 1/State would submit that on the complaint case filed by the Respondent No. 2, the learned JMFC has passed the order, and the proceeding of the complaint case is pending. 6. I have heard learned counsel for the parties and perused the documents annexed with the petition. 7. In the present petition, the petitioner raised three grounds, i.e. (1) jurisdiction of the revisional court to restore the complaint case which was dismissed for want of prosecution, (2) the allegation against the accused persons are contractual dispute and purely Civil in nature and criminal complaint case is not maintainable, and (3) the directly issuance of non-bailable warrant against the petitioner and other co-accused persons. 8. It transpires from the record that on 18-01-2011, the tractor of the Respondent No. 2 was repossessed by the finance company in which the petitioner was the Assistant Manager. A Criminal Complaint Case for the offence under Section 392, 120-B, 384, 506-B, 34 of the IPC, and Section 4 of the MP/CG Protection of Borrowers Act, 1937 was filed before the learned JMFC, Durg on 08-02-2012. The said complaint case was dismissed for want of prosecution on 08-10-2013, and it was restored vide order dated 10-10- 2014 passed by the learned revisional Court. On 17-11-2016, the complaint case was registered for the offence under Sections 392, 120-B, 384, 34 of the IPC, and Section 4 of the MP/CG Protection of Borrowers Act, 1937 and a non-bailable warrant was issued against the accused persons. The said order dated 10-10-2014, passed by the revisional Court, order dated 17-11- 2016, passed by the learned JMFC, Durg, and the entire proceeding of the 6 criminal complaint case No. 12226/2016 are under challenge in the present petition. 9. With respect to the exercise of revisional jurisdiction by the revisional court against the order of dismissal of the complaint case for want of prosecution, there is no illegality in the exercise of revisional jurisdiction by the revisional court. It was a complaint case, and on 08-10-2013, it was fixed for the calling of the police report under Section 202(1) of the CrPC. The non-appearance of the complainant and its consequences are described in Sections 249 and 256 of the CrPC. There are slight differences in both these situations, and to understand them, they are reproduced below:- “Section 249 – Absence of complainant —When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. Section 256 – Non-appearance or death of complainant —(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” 7 10. Present is not a case where a summons has been issued to the accused persons, but the case was fixed for submission of the police report under Section 202 (1) of the CrPC, and the presence of the complainant was not required. Had the summons been issued, and on the date of hearing, the complainant was absent, and the case was dismissed for want of prosecution, it had the effect of an acquittal, and then the acquittal appeal was to be filed by the Respondent No. 2. In the present case, the proceeding has been instituted upon complaint and on the date of hearing, the complainant was absent. Though the alleged offences are cognizable offences and non-compoundable, before issuance of a summons, the complaint case has been dismissed for want of prosecution. The revisional court has exercised its revisional jurisdiction under Section 397 read with Section 399 of the CrPC, and examined the legality and propriety of the order dated 08-10-2013 and has set aside the order of dismissal of the complaint case. Since the order has been passed by the learned revisional Court on 10-10-2014, and after such a long lapse of time, it would not be proper to examine the jurisdiction of the revisional Court and to revert to the revisional proceeding. By the revisional order dated 10-10-2014, the complaint case was restored, and the matter was returned to the trial Court. Even if the acquittal appeal had been filed by the Respondent No. 2, the question of jurisdiction would have arisen as to whether the dismissal of the complaint case is under Section 256 or Section 249 of the CrPC. The learned revisional Court examined the legality and propriety of the order dated 08-10-2013 and restored the complaint case, which cannot be re-examined at such a long lapse of time. 11. So far as the submission that the dispute between the parties is a contractual dispute and pure Civil in nature is concerned, after examining the allegation in the complaint, at this stage, it is very difficult to hold that the allegation is purely civil in nature. The complaint alleged that the accused persons had 8 entered into his house on 18-01-2011 and looted the tractor along with Rs. 75,000/- cash. They also threatened him. The allegation made by the complainant requires investigation and evidence with respect to the offence of robbery, criminal conspiracy and extortion, which cannot be decided at this stage. For registration of the offence, there appears to be sufficient material before the learned trial Court. At the stage of registration of the complaint case, only the prima facie material is to be seen, and meticulous examination of the material is not required. Therefore, on this ground, the complaint case cannot be quashed. 12. The third limb of submission of the learned counsel for the petitioner is that the learned trial court, after registration of the complaint case, directly issued the non-bailable warrant against the petitioner and the accused persons. It also transpires from the order sheet of the learned trial Court that on 17-11- 2016, the learned trial Court registered the complaint case, took cognizance of the offence and issued a non-bailable warrant against the accused persons. Section 204 (1) of the CrPC provided for the issue of process, which is noticed herein below:- “Section 204 – Issue of process—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a)a summons-case, he shall issue his summons for the attendance of the accused, or (b)a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.” 13. In the case of “Inder Mohan Goswami and Another v. State of Uttaranchal and Others”, 2007 (12) SCC 1, the Hon’ble Supreme Court has cautioned the Courts to issue non-bailable warrant at the first instance and emphasized the need to strike a proper balance between individual personal liberty and social interests before issuing a warrant by directing as under:- 9 “ When non-bailable warrants should be issued "53. 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: • 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 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. 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 straitjacket formula for issuance of warrants but as a 10 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." 14. In the matter of “Raghuvansh Dewanchand Bhasin v. State of Maharashtra and another”, 2012 (9) SCC 791, it has been held that power and jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one hand and the protection of citizen from highhandedness at the hands of the law enforcement agencies on the other. In para11 it has been held that:- “11. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law-enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. v. Poosu, (1976) 3 SCC 1 : 1976 SCC (Cri) 368 )” 15. In the matter of “Vikas v. State of Rajasthan”, 2014 (3) SCC 321, the Hon’ble Supreme Court has held that:- "13. The Constitution of India is the ground norm—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. 11 14. 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, [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] and in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra, [(2012) 9 SCC 791 : (2012) 4 SCC (Cri) 679] wherein it has been observed that : (Inder Mohan Goswami case, Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259, SCC p. 17, paras 50-51) “Personal liberty and the interest of the State 50. Civilized 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. 51. 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.” 15. 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 12 seek the attendance of the appellant herein under an application of Section 319 of the CrPC. 16. To appreciate the present case, it is pertinent to discuss the meaning of “bailable offences” and “non-bailable offences” and the circumstances in which a non-bailable warrant can be issued. 17. In the legislative history for the purposes of bail, the terms "bailable" and "non-bailable" are mostly used to formally distinguish one of the two classes 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 methodised by analogy, disciplined by system and subordinated 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 CrPC. The power under Section 319 CrPC 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 straitjacket 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 reiterated in Inder Mohan Goswami, [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] and in State of U.P. v. Poosu, [(1976) 3 SCC 1 : 1976 SCC (Cri) 368] , wherein it is mentioned that : (Inder Mohan Goswami case [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , SCC p. 17, para 53) "53. 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." 13 This could be when firstly it is reasonable to believe that the person will not be 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 CrPC 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.” 16. From the aforesaid law laid down by the Hon’ble Supreme Court and from the provision of Section 204 (1) CrPC, it is quite vivid that if the person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose of his presence in the proceeding. The very purpose of issuing either a summons, bailable warrant or non- bailable warrant is to secure the presence of the person concerned in the proceedings of the case. Accordingly, the non-bailable warrant issued by the learned trial Court against the petitioner vide order dated 17-11-2016 is quashed and modified the order dated 17-11-2016, passed by the learned trial Court that instead of the issuance of a non-bailable warrant against the petitioner, the learned trial Court shall issue a bailable warrant against the petitioner. 17. Since the statement made by the learned counsel for the petitioner that the petitioner is ready to appear before the trial Court and to cooperate in the proceeding of the case, the petitioner is directed to appear in the proceeding before the learned trial Court on the next date fixed before it and to take recourse to law with respect to his bail bond. 18. With the aforesaid modification of the order dated 17-11-2016, the present criminal miscellaneous petition is partly allowed. Sd/- (Ravindra Kumar Agrawal) Judge Aadil