Chandrasekar Patil vs Kannan

P.R. Shivakumar, J.—Notice before admission was issued to the respondent and the respondent has also entered appearance through counsel. The submissions made by the learned counsel appearing on both sides are heard. The present criminal revision case has been filed questioning the correctness and legality of the order passed by the learned Judicial Magistrate, Devakottai on 31.01.2011 dismissing Cr.M.P.No.239 of 2011 in STC No.496 of 2009 on the file of the said Judicial Magistrate. The said petition was filed for recalling a non-bailable warrant issued by the said court on 24.12.2010 The learned Judicial Magistrate, after hearing both sides and upon perusing the submissions made on both sides, came to the conclusion that the petitioner had not made out a case for recalling the non-bailable warrant and consequently, dismissed the said petition, namely Crl. M.P. No. 239 of 2011 in STC No.496 of 2009. by the impugned order dated 31.01.2011

The learned counsel for the revision petitioner, during his argument, has made an attempt to show that the case being one instituted on private complaint for a bailable offence, namely an offence punishable u/s 138 of the Negotiable instruments Act, the court ought not to have issued straightway a non-bailable warrant without issuing bailable warrant at the first instance. Of course when the accused fails to appear or evade summons in a summon''s case involving a bailable offence, the court shall not issue a non- bailable warrant at the first instance. But the case will loose its character of bailable case once the bail conditions are violated, in the present case, the revision petitioner seems to nave evaded service of summons for quite a long time and at last a bailable warrant was issued pursuant to which he surrendered and thereafter, on his petition u/s 436 Cr.P.C., he was released on bail on his executing a bond with two sureties.

Subsequently, the sureties came forward with a plea that no longer they wanted to be sureties for the appearance of the petitioner herein and they prayed for their discharge. As the petitioner was then regularly appearing, the court chose to allow the prayer of sureties and discharge them and at the same time directed the petitioner/accused to furnish fresh sureties. Thereafter, the petitioner failed to comply with the direction regarding furnishing of sureties and he also failed to appear on the dates appointed for the hearing of the case. Since the petitioner was not present on 24.12.2010 within which date he had been directed to produce sureties, the learned Judicial Magistrate, having no other option, chose to issue a non-bailable warrant on that day.

Issuance of such a non-bailable warrant consequent to the failure to produce sureties and at the same time remaining absent on the hearing dates cannot be said to be improper or irregular. The said non-bailable warrant was sought to be recalled by filing a petition in Cr.MP.No.239 of 2011. The learned Judicial Magistrate, considering the reasons assigned, came to the conclusion that the case was not a fit one for recalling the non-bailable warrant as the petitioner was found to be dragging on the case. Detailed reasons have also been assigned by the learned Judicial Magistrate for the dismissal of the petition seeking an order recalling the non bailable warrant. This court finds no defect or infirmity in the impugned order of the learned Judicial Magistrate. Hence, this court deems it fit to dismiss the criminal revision case. Accordingly, this criminal revision case is dismissed. However, it is made clear that the petitioner if not arrested earlier in execution of the warrant issued against him, shall surrender before the trial court within three weeks and file a petition u/s 436 Cr.P.C. for his release on bail, in which event the Magistrate shall consider the same and pass an order preferably on the date of filing itself. Consequently, connected Miscellaneous Petition is closed.