C. Mahesh Kumar vs Shambu Gowda

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner and perused the records.

The petitioner has approached this Court for setting aside the orders dated 11.8.2014 and 12.9.2014 passed in CC. No. 291/2012 by the Additional JMFC, Shimoga, by issuing NBW against the accused in spite of the learned counsel for the accused appearing and filing the application under Section 205 of Cr.P.C. for the exemption of the accused to appear before the Court.

On careful perusal of the order sheet of the trial Court discloses that on the private complaint filed by respondent No. 2 herein in PCR. 80/2008, the learned Magistrate has referred the matter for investigation and to report to the jurisdictional police and in fact the police have submitted the final report which was challenged by the complainant. After recording the sworn statement of the complainant the trial Court in spite of the request of the learned counsel for the accused who appeared before the Court below for issue of summons to the accused has issued NBW by rejecting the application filed by the accused under Section 205 of Cr.P.C. The reasons assigned by the learned Magistrate for rejecting the application are:

"The advocate for the accused filed vakalat with an application under Section 205 Cr.P.C. But the reason is not satisfied. Hence, application filed under Section 205 of Cr.P.C. rejected. Issue NBW to the accused."

What are the reasons assigned by the accused in the said application and how they were not satisfactory is not at all stated and discussed by the learned Magistrate. He has simply rejected the application without considering the contents of the application. Further, added to that, the learned counsel for the petitioner brought to my notice that at the first instance in all the criminal cases the Court has to issue summons to secure the presence of the accused and for the purpose of issuance of warrants, the Court has to appreciate the materials on record and should carefully examine whether the warrants are required to be issued to secure the presence of the accused.

The Full Bench of the Apex Court, in a case reported in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, at paragraphs-53 and 54, has observed as follows:-

"53. 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 ensure on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

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 courts 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."

In view of the abovesaid decision, in this particular case, the order of the learned Magistrate is very cryptic in nature because the learned counsel for the accused appeared in the Court and prayed that the accused will be kept present before the Court. In spite of the same, the learned Magistrate has issued NBW. This strange attitude of the learned Magistrate, in my opinion, has to be depreciated. The circumstances clearly establish that the act of the accused is not deliberate in not appearing before the Court below. In fact, he facilitated the Court below by making a submission that the accused would appear before the Court on future hearing dates. Therefore, he appears to have made the application under Section 205 Cr.P.C. This ought not to have been easily brushed aside by the trial Court. Under the abovesaid circumstances, the order passed by the learned Magistrate at the first instance itself in issuing NBW is not proper and correct. Therefore, the said order requires to be set aside. Consequently, the NBW issued against the accused is hereby set aside and the accused is directed to appear before the Court on the next date of hearing.

With the abovesaid observations, the petition stands disposed of.