ORDER
P.S. Narayana, J.
1. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor.
2. It is represented by the petitioner that the court below ordered non-bailable warrants in a casual way even though petition under Section 317 Cr.P.C., was filed by the petitioner for dispense with the attendance of the accused. It is further stated that the court below dismissed the application No. 6747 of 2002 on 28.11.2002 making the following order:
“Heard. No urgency to condone absence as coming for examination. Petition is dismissed.”
3. It is further stated that reasons had been explained as to why the petitioner was unable to appear before the Court. It is stated that the petitioner filed a petition under Section 70 (2) of the Code of Criminal Procedure, hereinafter referred to as ‘the Code’ for short, to recall the warrant, bearing No. 6866 of 2002 on 2.12.2002 by giving all relevant information and also filed doctor’s prescription. But, however, the said application was also dismissed on the sole ground that the petitioner was not present on 2.12.2002. It is further stated that the presence of the accused is not necessary for recalling a warrant.
4. As can be seen from the order, which was passed in Crl.M.P. No. 6866 of 2002 dated 2.12.2002 in C.C. No. 464 of 2002 on the file of the V Metropolitan Magistrate, Hyderabad, certain reasons had been given and it is appropriate to have a look at the order passed by the learned V Metropolitan Magistrate.
“Accused absent. Heard the counsel for the accused. The case is coming for examination of accused. Once the petition under Section 317 Cr.P.C., on 21.11.2002 was allowed. Again similar application was filed on 28.11.2002, and it was dismissed. The alleged ground is cold on 27.11.2002 and the doctor did not advise any way or other as seen from prescription. Therefore, the petition is dismissed.”
5. Sri G. Narender Raj, learned counsel for the petitioners, had taken me through the material available on record and had contended that in the facts and circumstances of the case the dismissal of the application cannot be sustained. The learned counsel also had placed reliance on decisions reported in Mr. Bhagwan Premchandani vs. The State of Andhra Pradesh rep., by Public Prosecutor and another, and also Shaik Yousuf vs. State of Andhra Pradesh through P.S. Asifnagar, 2001 (2) ALT CRL 270 (AP).
6. On the contrary, the learned Additional Public Prosecutor had contended that in the facts and circumstances of the case discretion had been exercised by the learned V Metropolitan Magistrate after recording proper reasons and hence the order which is questioned need not be interfered with.
7. Section 70 of the Code dealing with Form of warrant of arrest and duration, reads as hereunder:
“(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.”
8. In Bhagwan Premchandani’s case (supra 1) no doubt this Court had expressed the view that the discretion vested in the Magistrate to be exercised properly to secure the ends of justice but not to penalize or harass an individual with the procedural wrangles of the Court more so without visualizing the evil consequences that will flow from the order that is going to be passed. In Shaik Yousuf’s case (supra 2) it was held that if for any reason the petitioner is brought by executing a warrant issued against him, still he can be enlarged on bail. These things are simple and they shall not delay the disposal of the main case.
9. In matters of recalling of warrants, the accused who are expected to attend the court with all promptness very often will be highly irregular in attending the courts and in several of the matters applications will be filed to dispense with the attendance of the accused in a routine way explaining certain reasons. Hence, always it cannot be said the accused will be acting bona fide only. It is no doubt true that while exercising discretion in the case of recalling of NBWs or otherwise, the courts are expected to exercise discretion properly and if convinced by the reasons given, definitely the courts can exercise such discretion in favour of the accused only since the liberty of the accused is involved in such a case. In the present case on hand, an application to dispense with the presence of the accused was filed and the same was dismissed and the application to recall warrant also was filed giving certain reasons. As can be seen from the material available on record and the nature of the order which had been passed by the learned V Metropolitan Magistrate, I am satisfied that the order in question had not been made exercising discretion properly. It is no doubt true that normally such discretionary orders will not be interfered with. But, however, in view of the peculiar facts and circumstances of the case, the impugned order is set aside. The petitioner is directed to appear before the court below on the next date of adjournment without fail. The criminal petition is, accordingly, ordered.