N. Veerabhadriah vs State and Another

Arali Nagaraj, J.—Petitioner herein who is the only accused in C.C. No. 110 of 2010 (PCR No. 56 of 2009), pending on the file of the learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Challakere has sought for setting aside of the order dated 1.3.2010, passed in the said cased issuing NBW against him.

Though this matter is listed today for admission, having regard to the nature of the relief sought for, it is taken for final disposal. Heard the arguments of Sri M.P. Srikant, the learned Counsel for the petitioner-accused and Sri Vijay Kumar Magaje, the learned High Court Government Pleader for respondent 1 and Sri Patel D. Karegowda, the learned Counsel for the second respondent.

On the basis of the complaint filed by the second respondent herein, the learned Magistrate issued process against the petitioner-accused for the offence punishable under Sections 417, 419, 420, 465, 469 and 506 of the Indian Penal Code, 1860. On 21-1-2010, the learned Magistrate passed order issuing summons to the petitioner-accused returnable by 29-1-2010. Before the said date fixed for appearance of the accused, the case came to be advanced at the instance of the second respondent-complainant on 1-3-2010, on which date, the learned Magistrate passed the impugned order issuing NBW against the petitioner-accused.

It is not in dispute that after receipt of summons in the said case the petitioner-accused approached the learned Principal Sessions Judge. Chitradurga, by filing a petition u/s 438 of the Criminal Procedure Code, 1973 in Cri. Misc. No. 49 of 2010 seeking anticipatory bail in the said case. The said petition for anticipatory bail came to be rejected on the ground that since the petitioner was served with summons requiring him to appear before the Trial Court, his apprehension that he would be arrested by the police was unfound. As could be seen from the impugned order dated 1-3-2010 passed by the Trial Court, the complainant therein produced a certified copy of the order passed in Criminal Miscellaneous No. 49 of 2010 by the learned Principal Sessions Judge, Chitradurga, rejecting the petition of the accused for anticipatory bail and therefore the learned Magistrate passed the impugned order issuing NBW against him.

Issuing of NBW against the petitioner-accused despite issuing summons, requiring him to appear before the Trial Court in the said case on 29-3-2010, on the ground that his petition for anticipatory bail came to be rejected cannot be sustained in law. The learned Magistrate committed serious error in passing the impugned order issuing NBW against the petitioner-accused. Hence, the following:

ORDER

The present petition filed u/s 482 of the Cr.P.C. is allowed impugned order dated 1-3-2010 passed in C.C. No. 110 of 2010 by the learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Challakere, issuing NBW against the petitioner-accused is hereby set aside. If the warrant is issued against him pursuant to the said order, the learned Magistrate shall recall the same. The petitioner-accused is directed to appear in the said case before the Trial Court on 19-4-2010 without fail.

Sri Patel D. Karegowda, learned Advocate is permitted to file vakalath for the second respondent.