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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 2966 OF 2010
Ramesh Kotecha ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr.Subhash Jha i/b. M/s.Law Global for the
Applicant.
Mr.S.R. Shaikh, APP for the State.
ig CORAM : V.M. KANADE, J.
DATED : JUNE 28, 2010
P.C. :-
1 Heard the learned Counsel for the applicant
and APP for the State.
2 By this application which is filed under
Section 482 of the Cr.P.C., the applicant takes
exception to the order passed by the Chief
Metropolitan Magistrate, Esplanade, Mumbai, dated
18th June, 2010. By the said order, the learned
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Magistrate was pleased to reject the application
made by the applicant s Advocate for exemption and
refused to cancel the non-bailable warrant. Brief
facts are as under :-
3 A complaint was filed against the present
applicant for the offence punishable under Section
354 of the IPC which was registered with the Cuffe
Parade Police Station, Mumbai. After filing of the
complaint, the complainant remained absent on umber
of dates. Thereafter, however, her statement was
partly recorded on 11th June, 2009. Thereafter, the
case was adjourned to 11th August, 2009, 27th August,
2009, 8th October, 2009, 24th November, 2009, 15th
December, 2009, 7th April, 2010, 13th April, 2010 and
finally to 18th June, 2010. On 13th April, 2010, when
the matter appeared before the court, complainant
Ms.Leena Francis Soaz was present and she informed
the trial court that she was contemplating not to
proceed with the case and therefore, sought time to
consider this aspect. The learned Magistrate,
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accordingly, in view of the request made by her,
adjourned the case on 18th June, 2010. On 18th June,
2010 when the matter was called out, the applicant s
Advocate was not present. The accused also was not
present. An application was filed for exemption and
the said application was ready. However, since the
applicant s Advocate before entering the court room,
the learned Magistrate was pleased to issue non-
bailable warrant by passing the following order :-
Accused remains absent. Issue
NBW against accused.
Thereafter, the applicant s Advocate made an
application for exemption. In the said application,
it was mentioned that the applicant was unwell and
was unable to attend the court and therefore, it was
prayed that the accused should be exempted from
appearing in the court on that day. This application
was also rejected by passing the following order :-
Ld.APP present.
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Holding Advocate present.
Application for exemption rejected.
Issue NBW.
Being aggrieved by the said order, the applicant has
preferred this application under Section 482 of the
Cr.P.C.
4 The learned Counsel for the applicant
submitted that the
ig learned Magistrate erred in
issuing non-bailable warrant and in not granting
exemption to the accused from appearing in the
court. He submitted that the complainant had
remained absent on number of occasions and she was
also contemplating withdrawal of the complaint.
Under these circumstances, the learned Magistrate
was not justified in issuing the non-bailable
warrant and thereafter, refusing to cancel it when
an application for exemption was made. He invited my
attention to the judgment of the Apex Court in Inder
Mohan Goswami and another vs. State of Uttaranchal
and others, reported in (2007) 12 SCC 1. He
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submitted that the Apex Court had held that non-
bailable warrant should normally not be issued if
the presence of the accused could be secured. The
circumstances under which the said warrant could be
issued was laid down in the said judgment. He also
invited my attention to judgment of the learned
Single Judge of this Court in the case of Bhaskar
Sen vs. State of Maharashtra & others, reported in
2004(2)
Bom.C.R.(Cri.) 674 wherein similar
guidelines were laid down by the learned Single
Judge of this Court.
5 I have heard both the learned Counsel for
the applicant and APP for the State. In my view,
the learned Magistrate was not justified in not
granting exemption to the applicant and not
cancelling non-bailable warrant which was earlier
issued. The Roznama clearly indicate that the
complainant had remained absent on number of dates
which are mentioned hereinabove. She had also made a
request for a further date in order to reconsider
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the continuation of the complaint. Under these
circumstances, the learned Magistrate ought to have
granted exemption particularly, when the application
for exemption was filed in which it was stated that
the accused was unwell and he could not appear
before the Magistrate on that day. It would be
relevant to refer to the observations made by the
Apex Court in the case of Inder Mohan Goswami
(supra) in this
ig context. The Apex Court in
paragraphs 50 to 54 has observed as under :-
50. Civilised countries have
recognised that liberty is the most
precious of all the human rights. TheAmerican Declaration of Independence,
1776. French Declaration of the
Rights of Men and the Citizen, 1789,
Universal Declaration of Human Rightsand 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, Article21 of our Constitution proclaims that
no one shall be deprived of his
liberty except in accordance with
procedure prescribed by law.
51. The issuance of non-bailable
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warrants involves interference with
personal liberty. Arrest and
imprisonment means deprivation of the
most precious right of an individual.
Therefore, the courts have to be
extremely careful before issuing non-
bailable warrants.
52. Just as liberty is precious
for an individual so is the interest
of the society in maintaining law and
order. Both are extremely important
for the survival of a civilised
society. Sometimes in the larger
interest of the public and the State
it becomes absolutely imperative to
curtail freedom of an individual for
a certain period, only then the non-
bailable warrants should be issued.
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
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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.
6 Similarly, in the case of Bhaskar Sen
(supra), the learned Single Judge had occasion to
consider the provisions of Sections 205 and 251 of
the Cr.P.C. In para 10 of the said judgment, the
learned Single Judge has observed as under :-
10. A large number of cases are
being filed in this Court seeking
cancellation of NBW issued either
while rejecting the application for
exemption or for non-appearance of
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9even if Advocate for the accused
appears on his behalf. It is also
observed that the complaints undersection 138 of the Act are being
filed against the companies in whichall the directors are being arraigned
as accused and their presence is
being insisted on every date of
hearing and no proceedings are beingtaken up in their absence. It is
further observed that the progress of
the cases under section 138 impedes
for want of their presence. The fact
remains as to why their presence isbeing insisted on every date of
hearing. The idea is to see that theprogress of the case is not hindered
for want of presence of the accused
or even the complainant for thatmatter. Keeping this in view and
against a backdrop of the
observations made in the foregoing
paragraphs, I deem it appropriate toissue the following directions to the
courts trying summons cases and inparticular, cases under section 138
of the Act.
(i) Ordinarily the Court
should be generous and liberal in
exercising powers under sections 205
and 317 of the Code and grant
exemption to the accused from
personal appearance unless presenceis imperatively needed or becomes
indispensable. While considering the
application for exemption, the Court
should also bear in mind the nature
of accusations and prejudice, if any,
likely to be caused to the
prosecution or the complainant, if::: Downloaded on – 09/06/2013 16:03:56 :::
10personal attendance of the accused is
dispensed with or to the accused if
personal attendance is insisted upon,as case may be.
(ii) If an accused makes even
the first appearance through a
Counsel, he may be allowed to do so.
(iii) If an accused is
seeking permanent exemption in a
case, the Court, while dealing with
such application, should take
precautions that the accused gives an
undertaking to the satisfaction of
the Court that he would not dispute
his identity as the particular
accused in the case, and that a
Counsel on his behalf would be
present in the Court on all dates of
hearing and that he has no objection
for recording a plea on his behalf of
a Counsel and in taking evidence in
his absence.
(iv) While dealing with
the application seeking permanent
exemption from appearing in the case
as aforestated, if, the Court for any
reasons is of the opinion that such
exemption should not be granted, it
may do so by recording or indicating
reasons for rejecting such prayer.
(v) It is open for the Court
to grant exemption which is either
permanent or for a specific period,
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depending upon the facts of each
case, on the conditions as it deems
fit and proper, requiring the accused
to file an undertaking as indicated
earlier.
(vi) In a given case, the
Court may record a plea of the
accused even when his Advocate makes
such plea on his behalf in a case
where personal appearance of the
accused is dispensed with on his
furnishing the undertaking in terms
of Clause (iii). However, it is open
for the
ig Court to refuse such
permission for reasons to be recorded
separately.
(vii) The Court should avoid
issuance of non-bailable warrant in
the first instance to secure presence
of the accused facing trial and it
should be applied as a last resort.
(viii) If a Counsel for the
accused fails to appear in the matter
and his absence impedes further
progress of the proceedings including
examination of witnesses, the Court
may resort to any other course as may
be available under the provisions of
the Code to secure presence of the
accused, including issuance of NBW
and may cancel the order of exemption
and in such case may or may not grant
exemption any more.
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(ix) The Court should avoid
requiring the accused or his Advocate
to apply for exemption on every date
of hearing.
(x) While exercising the
powers to grant exemption under any
circumstance, the Court shall not
compromise with the further progress
of the proceedings and see to it that
the presence or absence of either of
the parties does not impede the
proceedings.
(xi) In a given case, similar
parameters be applied for granting
exemption to the complainant if his
absence is not likely to cause
prejudice, if any, to the accused or
hinder the progress of the
case/complaint.
7 Perusal of the guidelines laid down by the
Supreme Court shows that the Magistrate has a power
to issue non-bailable warrant but that should
ordinarily be issued as a last resort. Before
issuing a non-bailable warrant, the Magistrate may
issue summons and then a bailable warrant and only
if the presence of the accused is not secured, he
may have to take resort to the provision of issuance
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of non-bailable warrant. In number of judgments of
the Apex Court and this Court, it has been held that
the Magistrate should not insist on the presence of
the accused at all times unless it is absolutely
necessary. The ratio of the said judgments,
therefore, in my view, squarely applies to the facts
of the present case.
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Order is, accordingly, set aside. The non-
bailable warrant issued by the Magistrate is
quashed.
9 Application is allowed and disposed of.
(V.M. KANADE, J.)
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