{"id":46802,"date":"2010-06-28T00:00:00","date_gmt":"2010-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-kotecha-vs-the-state-of-maharashtra-on-28-june-2010"},"modified":"2017-12-24T02:54:34","modified_gmt":"2017-12-23T21:24:34","slug":"ramesh-kotecha-vs-the-state-of-maharashtra-on-28-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-kotecha-vs-the-state-of-maharashtra-on-28-june-2010","title":{"rendered":"Ramesh Kotecha vs The State Of Maharashtra on 28 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ramesh Kotecha vs The State Of Maharashtra on 28 June, 2010<\/div>\n
Bench: V.M. Kanade<\/div>\n
                                          1\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                   CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                             \n              CRIMINAL APPLICATION NO. 2966 OF 2010\n\n\n\n\n                                                     \n    Ramesh Kotecha                                             ...Applicant\n        vs.\n    The State of Maharashtra                                   ...Respondent\n\n\n\n\n                                                    \n    Mr.Subhash Jha i\/b. M\/s.Law Global for the\n    Applicant.\n    Mr.S.R. Shaikh, APP for the State.\n\n\n\n\n                                         \n                          ig                  CORAM : V.M. KANADE, J.\n<\/pre>\n
                                                DATED : JUNE 28, 2010<\/p>\n
    P.C. :-\n<\/p>\n
    1         Heard the learned Counsel for the applicant<\/p>\n
    and APP for the State.\n<\/p>\n
    2         By    this      application        which        is     filed         under<\/p>\n
    Section   482       of    the   Cr.P.C.,         the     applicant             takes<\/p>\n
    exception      to        the    order       passed        by        the        Chief<\/p>\n
    Metropolitan        Magistrate,           Esplanade,         Mumbai,           dated<\/p>\n
    18th   June,   2010.       By   the       said    order,         the       learned<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                      2<\/span><\/p>\n
    Magistrate     was   pleased    to     reject       the       application<\/p>\n
    made by the applicant s Advocate for exemption and<\/p>\n
    refused to cancel the non-bailable warrant. Brief<\/p>\n
    facts are as under :-\n<\/p>\n
    3          A complaint was filed against the present<\/p>\n
    applicant for the offence punishable under Section<\/p>\n
    354 of the IPC which was registered with the Cuffe<\/p>\n
    Parade Police Station, Mumbai. After filing of the<\/p>\n
    complaint, the complainant remained absent on umber<\/p>\n
    of   dates.    Thereafter,     however,       her       statement             was<\/p>\n
    partly recorded on 11th June, 2009. Thereafter, the<\/p>\n
    case was adjourned to 11th August, 2009, 27th August,<\/p>\n
    2009,   8th   October,   2009,       24th   November,           2009,         15th<\/p>\n
    December, 2009, 7th April, 2010, 13th April, 2010 and<\/p>\n
    finally to 18th June, 2010.           On 13th April, 2010, when<\/p>\n
    the matter appeared before the court, complainant<\/p>\n
    Ms.Leena Francis Soaz was present and she informed<\/p>\n
    the trial court that she was contemplating not to<\/p>\n
    proceed with the case and therefore, sought time to<\/p>\n
    consider      this   aspect.         The    learned           Magistrate,<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                      3<\/span><\/p>\n
    accordingly, in view of the request made by her,<\/p>\n
    adjourned the case on 18th June, 2010. On 18th June,<\/p>\n
    2010 when the matter was called out, the applicant s<\/p>\n
    Advocate was not present. The accused also was not<\/p>\n
    present. An application was filed for exemption and<\/p>\n
    the said application was ready. However, since the<\/p>\n
    applicant s Advocate before entering the court room,<\/p>\n
    the   learned   Magistrate    was      pleased       to     issue         non-\n<\/p>\n
    bailable warrant by passing the following order :-\n<\/p>\n
                     Accused remains absent. Issue
\n             NBW against accused.\n<\/p>\n
    Thereafter,     the     applicant s       Advocate              made          an<\/p>\n
    application for exemption. In the said application,<\/p>\n
    it was mentioned that the applicant was unwell and<\/p>\n
    was unable to attend the court and therefore, it was<\/p>\n
    prayed   that   the    accused       should   be      exempted            from<\/p>\n
    appearing in the court on that day. This application<\/p>\n
    was also rejected by passing the following order :-\n<\/p>\n
                          Ld.APP present.\n<\/p><\/blockquote>\n
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\n                                             4<\/span><\/p>\n
                          Holding            Advocate             present.\n                  Application for           exemption            rejected.\n                  Issue NBW.\n\n\n\n\n                                                                                 \n                                                         \n<\/pre>\n
    Being aggrieved by the said order, the applicant has<\/p>\n
    preferred this application under Section 482 of the<\/p>\n
    Cr.P.C.<\/p>\n
\n\n\n\n    4             The       learned     Counsel         for         the        applicant\n\n\n\n\n                                           \n    submitted          that    the\n                               ig      learned      Magistrate                 erred         in\n\n    issuing       non-bailable         warrant      and        in      not       granting\n                             \n    exemption          to    the   accused        from      appearing              in      the\n\n    court.        He     submitted         that    the         complainant                 had\n      \n\n<\/pre>\n
    remained absent on number of occasions and she was<\/p>\n
    also     contemplating            withdrawal          of      the        complaint.\n<\/p>\n
    Under    these          circumstances,        the      learned           Magistrate<\/p>\n
    was     not        justified      in    issuing            the       non-bailable<\/p>\n
    warrant and thereafter, refusing to cancel it when<\/p>\n
    an application for exemption was made. He invited my<\/p>\n
    attention to the judgment of the Apex Court in Inder<\/p>\n
    Mohan Goswami and another vs. State of Uttaranchal<\/p>\n
    and     others,         reported       in     (2007)         12       SCC        1.      He<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                         5<\/span><\/p>\n
    submitted that the Apex Court had held that non-\n<\/p>\n
    bailable warrant should normally not be issued if<\/p>\n
    the presence of the accused could be secured. The<\/p>\n
    circumstances under which the said warrant could be<\/p>\n
    issued was laid down in the said judgment. He also<\/p>\n
    invited    my    attention     to       judgment        of      the       learned<\/p>\n
    Single Judge of this Court in the case of Bhaskar<\/p>\n
    Sen vs. State of Maharashtra & others<\/a>, reported in<\/p>\n
    2004(2)<\/p>\n
                 Bom.C.R.(Cri.)              674        wherein               similar<\/p>\n
    guidelines      were   laid    down       by    the       learned           Single<\/p>\n
    Judge of this Court.\n<\/p>\n
    5          I have heard both the learned Counsel for<\/p>\n
    the applicant and APP for the State.                            In my view,<\/p>\n
    the   learned     Magistrate       was        not   justified             in      not<\/p>\n
    granting     exemption        to        the     applicant              and        not<\/p>\n
    cancelling      non-bailable        warrant         which       was       earlier<\/p>\n
    issued.    The    Roznama      clearly          indicate             that         the<\/p>\n
    complainant had remained absent on number of dates<\/p>\n
    which are mentioned hereinabove. She had also made a<\/p>\n
    request for a further date in order to reconsider<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                           6<\/span><\/p>\n
    the    continuation       of    the       complaint.            Under          these<\/p>\n
    circumstances, the learned Magistrate ought to have<\/p>\n
    granted exemption particularly, when the application<\/p>\n
    for exemption was filed in which it was stated that<\/p>\n
    the    accused    was    unwell       and      he    could         not       appear<\/p>\n
    before    the    Magistrate      on       that       day.      It      would         be<\/p>\n
    relevant to refer to the observations made by the<\/p>\n
    Apex    Court    in     the    case       of   Inder         Mohan         Goswami<\/p>\n
    (supra)    in     this
\n                           ig     context.         The      Apex          Court          in<\/p>\n
    paragraphs 50 to 54 has observed as under :-\n<\/p>\n
               50.     Civilised    countries   have<\/p>\n
              recognised that liberty is the most
\n              precious of all the human rights. The<\/p>\n
              American Declaration of Independence,
\n              1776.   French   Declaration   of  the
\n              Rights of Men and the Citizen, 1789,
\n              Universal Declaration of Human Rights<\/p>\n
              and the International Covenant of
\n              Civil and Political Rights, 1966 all
\n              speak with one voice-liberty is the
\n              natural and inalienable right of
\n              every human being. Similarly, Article<\/p>\n
              21 of our Constitution proclaims that
\n              no one shall be deprived of his
\n              liberty except in accordance with
\n              procedure prescribed by law.<\/p><\/blockquote>\n
              51.           The issuance of non-bailable<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                       7<\/span><\/p>\n
     warrants involves interference with
\n     personal    liberty.    Arrest    and
\n     imprisonment means deprivation of the<\/p>\n
     most precious right of an individual.
\n     Therefore, the courts have to be<\/p>\n
     extremely careful before issuing non-
\n     bailable warrants.\n<\/p>\n
     52.     Just as liberty is precious
\n     for an individual so is the interest
\n     of the society in maintaining law and
\n     order. Both are extremely important
\n     for the survival of a civilised<\/p>\n
     society. Sometimes in the larger
\n     interest of the public and the State<\/p>\n
     it becomes absolutely imperative to
\n     curtail freedom of an individual for
\n     a certain period, only then the non-\n<\/p>\n
     bailable warrants should be issued.\n<\/p>\n
     When non-bailable warrants should be<\/p>\n
     issued<\/p>\n
     53.     Non-bailable warrant should
\n     be issued to bring a person to court
\n     when summons or bailable warrants<\/p>\n
     would be unlikely to have the desired
\n     result. This could be when:\n<\/p>\n
             it is reasonable to believe<\/p>\n
     that the person will not voluntarily
\n     appear in court; or<\/p>\n
             the police authorities are
\n     unable to find the person to serve
\n     him with a summon; or<\/p>\n
                             ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                8<\/span><\/p>\n
                    it is considered that                   the
\n            person could harm someone if                    not
\n            placed into custody immediately.\n<\/p>\n
            54       As far as possible, if the
\n            court is of the opinion that a summon
\n            will    suffice   in    getting    the
\n            appearance of the accused in the<\/p>\n
            court, the summon or the bailable
\n            warrants should be preferred. The
\n            warrants either bailable or non-
\n            bailable   should  never   be   issued
\n            without proper scrutiny of facts and<\/p>\n
            complete application of mind, due to
\n            the extremely serious consequences<\/p>\n
            and ramifications which ensue on
\n            issuance of warrants. The court must
\n            very carefully examine whether the<\/p>\n
            criminal complaint or FIR has not
\n            been filed with an oblique motive.\n<\/p>\n
    6       Similarly,   in   the    case    of       Bhaskar            Sen<\/p>\n
    (supra), the learned Single     Judge    had       occasion            to<\/p>\n
    consider the provisions of Sections 205 and 251 of<\/p>\n
    the Cr.P.C. In para 10 of the said judgment, the<\/p>\n
    learned Single Judge has observed as under :-\n<\/p>\n
             10.    A large number of cases are
\n            being filed in this Court seeking
\n            cancellation of NBW issued either
\n            while rejecting the application for
\n            exemption or for non-appearance of
\n            the accused on one date of hearing<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                        9<\/span><\/p>\n
     even if Advocate for the accused
\n     appears on his behalf. It is also
\n     observed that the complaints under<\/p>\n
     section 138 of the Act are being
\n     filed against the companies in which<\/p>\n
     all the directors are being arraigned
\n     as accused and their presence is
\n     being insisted on every date of
\n     hearing and no proceedings are being<\/p>\n
     taken up in their absence. It is
\n     further observed that the progress of
\n     the cases under section 138 impedes
\n     for want of their presence. The fact
\n     remains as to why their presence is<\/p>\n
     being insisted on every date of
\n     hearing. The idea is to see that the<\/p>\n
     progress of the case is not hindered
\n     for want of presence of the accused
\n     or even the complainant for that<\/p>\n
     matter. Keeping this in view and
\n     against     a   backdrop    of    the
\n     observations made in the foregoing
\n     paragraphs, I deem it appropriate to<\/p>\n
     issue the following directions to the
\n     courts trying summons cases and in<\/p>\n
     particular, cases under section 138
\n     of the Act.\n<\/p><\/blockquote>\n
             (i)     Ordinarily   the   Court<\/p>\n
     should be generous and liberal in
\n     exercising powers under sections 205
\n     and 317 of the Code and grant
\n     exemption    to    the    accused   from
\n     personal appearance unless presence<\/p>\n
     is imperatively needed or becomes
\n     indispensable. While considering the
\n     application for exemption, the Court
\n     should also bear in mind the nature
\n     of accusations and prejudice, if any,
\n     likely    to    be    caused    to   the
\n     prosecution or the complainant, if<\/p>\n
                              ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                        10<\/span><\/p>\n
     personal attendance of the accused is
\n     dispensed with or to the accused if
\n     personal attendance is insisted upon,<\/p>\n
     as case may be.<\/p><\/blockquote>\n
             (ii) If an accused makes even
\n     the   first   appearance   through   a
\n     Counsel, he may be allowed to do so.\n<\/p>\n
              (iii)    If   an   accused   is
\n     seeking permanent exemption in a
\n     case, the Court, while dealing with<\/p>\n
     such    application,      should    take
\n     precautions that the accused gives an<\/p>\n
     undertaking to the satisfaction of
\n     the Court that he would not dispute
\n     his   identity    as   the    particular<\/p>\n
     accused in the case, and that a
\n     Counsel   on   his   behalf   would   be
\n     present in the Court on all dates of
\n     hearing and that he has no objection<\/p>\n
     for recording a plea on his behalf of
\n     a Counsel and in taking evidence in<\/p>\n
     his absence.\n<\/p>\n
              (iv)     While dealing with<\/p>\n
     the   application   seeking  permanent
\n     exemption from appearing in the case
\n     as aforestated, if, the Court for any
\n     reasons is of the opinion that such
\n     exemption should not be granted, it<\/p>\n
     may do so by recording or indicating
\n     reasons for rejecting such prayer.\n<\/p>\n
             (v) It is open for the Court
\n     to grant exemption which is either
\n     permanent or for a specific period,<\/p>\n
                              ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                      11<\/span><\/p>\n
     depending upon the facts of each
\n     case, on the conditions as it deems
\n     fit and proper, requiring the accused<\/p>\n
     to file an undertaking as indicated
\n     earlier.\n<\/p>\n
             (vi) In a given case, the
\n     Court may record a plea of the<\/p>\n
     accused even when his Advocate makes
\n     such plea on his behalf in a case
\n     where personal appearance of the
\n     accused is dispensed with on his
\n     furnishing the undertaking in terms<\/p>\n
     of Clause (iii). However, it is open
\n     for   the
\n            ig   Court   to  refuse   such
\n     permission for reasons to be recorded
\n     separately.\n<\/p>\n
             (vii) The Court should avoid
\n     issuance of non-bailable warrant in
\n     the first instance to secure presence<\/p>\n
     of the accused facing trial and it
\n     should be applied as a last resort.\n<\/p>\n
              (viii) If a Counsel for the
\n     accused fails to appear in the matter<\/p>\n
     and   his   absence  impedes  further
\n     progress of the proceedings including
\n     examination of witnesses, the Court
\n     may resort to any other course as may
\n     be available under the provisions of<\/p>\n
     the Code to secure presence of the
\n     accused, including issuance of NBW
\n     and may cancel the order of exemption
\n     and in such case may or may not grant
\n     exemption any more.\n<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                  12<\/span><\/p>\n
                     (ix) The Court should avoid
\n             requiring the accused or his Advocate
\n             to apply for exemption on every date<\/p>\n
             of hearing.\n<\/p>\n
                     (x)   While   exercising  the
\n             powers to grant exemption under any
\n             circumstance, the Court shall not<\/p>\n
             compromise with the further progress
\n             of the proceedings and see to it that
\n             the presence or absence of either of
\n             the parties does not impede the
\n             proceedings.\n<\/p>\n
                     (xi) In a given case, similar
\n             parameters be applied for granting
\n             exemption to the complainant if his<\/p>\n
             absence   is  not   likely  to  cause
\n             prejudice, if any, to the accused or
\n             hinder    the    progress    of   the
\n             case\/complaint.\n<\/p>\n
    7        Perusal of the guidelines laid down by the<\/p>\n
    Supreme Court shows that the Magistrate has a power<\/p>\n
    to   issue   non-bailable    warrant       but        that         should<\/p>\n
    ordinarily   be   issued    as    a   last      resort.            Before<\/p>\n
    issuing a non-bailable warrant, the Magistrate may<\/p>\n
    issue summons and then a bailable warrant and only<\/p>\n
    if the presence of the accused is not secured, he<\/p>\n
    may have to take resort to the provision of issuance<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>
\n                                    13<\/span><\/p>\n
    of non-bailable warrant. In number of judgments of<\/p>\n
    the Apex Court and this Court, it has been held that<\/p>\n
    the Magistrate should not insist on the presence of<\/p>\n
    the accused at all times unless it is absolutely<\/p>\n
    necessary.     The     ratio   of        the     said          judgments,<\/p>\n
    therefore, in my view, squarely applies to the facts<\/p>\n
    of the present case.\n<\/p>\n
    8<\/span><\/p>\n
               Order is, accordingly, set aside. The non-\n<\/p>\n
    bailable     warrant    issued      by     the        Magistrate               is<\/p>\n
    quashed.\n<\/p>\n
    9          Application is allowed and disposed of.\n<\/p>\n
                                         (V.M. KANADE, J.)<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 16:03:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ramesh Kotecha vs The State Of Maharashtra on 28 June, 2010 Bench: V.M. Kanade 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-46802","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRamesh Kotecha vs The State Of Maharashtra on 28 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-kotecha-vs-the-state-of-maharashtra-on-28-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh Kotecha vs The State Of Maharashtra on 28 June, 2010 - 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