present.

An application was filed for exemption and the said

2010 ALL MR (Cri) 2368
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
Ramesh Kotecha Vs. State Of Maharashtra
Criminal Application No.2966 of 2010
application was ready. However, since the applicant's
Advocate before entering the court room, the learned
Magistrate was pleased to issue non-bailable warrant by
passing the following order :-
"Accused remains absent. Issue NBW against
accused."

28th June, 2010 Thereafter, the applicant's Advocate made an application

for exemption. In the said application, it was mentioned that
Petitioner Counsel: Mr. SUBHASH JHA,M/s. Law Global
the applicant was unwell and was unable to attend the court
Respondent Counsel: Mr. S. R. SHAIKH
and therefore, it was prayed that the accused should be
Criminal P.C. (1973), Ss.205, 251 - When non-bailable warrants exempted from appearing in the court on that day. This
should be issued - Magistrate has a power to issue non-bailable application was also rejected by passing the following order
warrant but that should ordinarily be issued as a last resort - :-
Before issuing a non-bailable warrant, Magistrate may issue
summons and then a bailable warrant and only if presence of "Ld. APP present.
accused is not secured, he may have to take resort to provision of
issuance of non-bailable warrant - Magistrate should not insist on
Holding Advocate present. Application for
presence of accused at all times unless it is absolutely necessary. exemption rejected. Issue NBW."
2004 ALL MR (Cri) 2889 & 2007 ALL MR (Cri) 3302 (S.C.) - Rel. on.
(Paras 5, 7)
Being aggrieved by the said order, the applicant has
preferred this application under Section 482 of the Cr.P.C..
Cases Cited:
Inder Mohan Goswami Vs. State of Uttaranchal, 2007 ALL MR (Cri)
4. The learned Counsel for the applicant submitted that the
3302 (S.C.)=(2007)12 SCC 1 [Para 4,5]
learned Magistrate erred in issuing non-bailable warrant and
Bhaskar Sen Vs. State of Maharashtra, 2004 ALL MR (Cri)
in not granting exemption to the accused from appearing in
2889=2004(2) Bom.C.R. (Cri.) 674 [Para 4,6]
the court. He submitted that the complainant had remained
absent on number of occasions and she was also
JUDGMENT
contemplating withdrawal of the complaint. Under these
circumstances, the learned Magistrate was not justified in
JUDGMENT :- Heard the learned Counsel for the applicant issuing the non-bailable warrant and thereafter, refusing to
and APP for the State. cancel it when an application for exemption was made. He
invited my attention to the judgment of the Apex Court in
2. By this application which is filed under Section 482 of the Inder Mohan Goswami and another Vs. State of Uttaranchal
Cr.P.C., the applicant takes exception to the order passed by and others, reported in (2007)12 SCC 1 : [2007 ALL MR (Cri)
the Chief Metropolitan Magistrate, Esplanade, Mumbai, 3302 (S.C.)]. He submitted that the Apex Court had held that
dated 18th June, 2010. By the said order, the learned non-bailable warrant should normally not be issued if the
Magistrate was pleased to reject the application made by presence of the accused could be secured. The
the applicant's Advocate for exemption and refused to circumstances under which the said warrant could be issued
cancel the non-bailable warrant. Brief facts are as under :- was laid down in the said judgment. He also invited my
attention to judgment of the learned Single Judge of this
3. A complaint was filed against the present applicant for the
Court in the case of Bhaskar Sen Vs. State of Maharashtra &
offence punishable under Section 354 of the IPC which was
others, reported in 2004(2) Bom.C.R. (Cri.) 674 : [2004 ALL MR
registered with the Cuffe Parade Police Station, Mumbai.
(Cri) 2889] wherein similar guidelines were laid down by the
After filing of the complaint, the complainant remained
learned Single Judge of this Court.
absent on umber of dates. Thereafter, however, her
statement was partly recorded on 11th June, 2009. 5. I have heard both the learned Counsel for the applicant
Thereafter, the case was adjourned to 11th August, 2009, and APP for the State. In my view, the learned Magistrate
27th August, 2009, 8th October, 2009, 24th November, 2009, was not justified in not granting exemption to the applicant
15th December, 2009, 7th April, 2010, 13th April, 2010 and and not cancelling non-bailable warrant which was earlier
finally to 18th June, 2010. On 13th April, 2010, when the issued. The Roznama clearly indicate that the complainant
matter appeared before the court, complainant Ms. Leena had remained absent on number of dates which are
Francis Soaz was present and she informed the trial court mentioned hereinabove. She had also made a request for a
that she was contemplating not to proceed with the case further date in order to reconsider the continuation of the
and therefore, sought time to consider this aspect. The complaint. Under these circumstances, the learned
learned Magistrate, accordingly, in view of the request made Magistrate ought to have granted exemption particularly,
by her, adjourned the case on 18th June, 2010. On 18th June, when the application for exemption was filed in which it was
2010 when the matter was called out, the applicant's stated that the accused was unwell and he could not appear
Advocate was not present. The accused also was not before the Magistrate on that day. It would be relevant to
refer to the observations made by the Apex Court in the
case of Inder Mohan Goswami [2007 ALL MR (Cri) 3302
(S.C.)] (supra) in this context. The Apex Court in paragraphs
50 to 54 has observed as under :-
"50. Civilised countries have recognised that
liberty is the most precious of all the human
rights. The American Declaration of
Independence, 1776. French Declaration of the
Rights of Men and the Citizen, 1789, Universal
Declaration of Human Rights and the
International Covenant of Civil and Political
Rights, 1966 all speak with one voice-liberty is the
natural and inalienable right of every human
being. Similarly, Article 21 of our Constitution
proclaims that no one shall be deprived of his
liberty except in accordance with procedure
prescribed by law.
51. The issuance of non-bailable warrants
involves interference with personal liberty. Arrest
and imprisonment means deprivation of the most
precious right of an individual. Therefore, the
courts have to be extremely careful before issuing
non-bailable warrants.
52. Just as liberty is precious for an individual
so is the interest of the society in maintaining law
and order. Both are extremely important for the
survival of a civilised society. Sometimes in the
larger interest of the public and the State it
becomes absolutely imperative to curtail freedom
of an individual for a certain period, only then the
non-bailable warrants should be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to
bring a person to court when summons or
bailable warrants would be unlikely to have the
desired result. This could be when:
it is reasonable to believe that the person will
not voluntarily appear in court; or
the police authorities are unable to find the
person to serve him with a summon; or
it is considered that the person could harm
someone if not placed into custody immediately.
54. 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 ensue on issuance of
warrants. The court must very carefully examine
whether the criminal complaint or FIR has not
been filed with an oblique motive."
6. Similarly, in the case of Bhaskar Sen [2004 ALL MR (Cri)
2889] (supra), the learned Single Judge had occasion to
consider the provisions of Sections 205 and 251 of the Cr.P.C..
In para 10 of the said judgment, the learned Single Judge
has observed as under :-
"10. A large number of cases are being filed in
this Court seeking cancellation of NBW issued
either while rejecting the application for
exemption or for non-appearance of the accused
on one date of hearing even if Advocate for the
accused appears on his behalf. It is also observed
that the complaints under section 138 of the Act
are being filed against the companies in which all
the directors are being arraigned as accused and
their presence is being insisted on every date of
hearing and no proceedings are being taken up in
their absence. It is further observed that the
progress of the cases under section 138 impedes
for want of their presence. The fact remains as to
why their presence is being insisted on every date
of hearing. The idea is to see that the progress of
the case is not hindered for want of presence of
the accused or even the complainant for that
matter. Keeping this in view and against a
backdrop of the observations made in the
foregoing paragraphs, I deem it appropriate to
issue the following directions to the courts trying
summons cases and in particular, cases under
section 138 of the Act.
(i) Ordinarily the Court should be generous and
liberal in exercising powers under sections 205
and 317 of the Code and grant exemption to the
accused from personal appearance unless
presence is imperatively needed or becomes
indispensable. While considering the application
for exemption, the Court should also bear in mind
the nature of accusations and prejudice, if any,
likely to be caused to the prosecution or the
complainant, if personal attendance of the
accused is dispensed with or to the accused if
personal attendance is insisted upon, as case may
be.
(ii) If an accused makes even the first
appearance through a Counsel, he may be allowed
to do so.
(iii) If an accused is seeking permanent
exemption in a case, the Court, while dealing with
such application, should take precautions that the
accused gives an undertaking to the satisfaction
of the Court that he would not dispute his identity
as the particular accused in the case, and that a
Counsel on his behalf would be present in the
Court on all dates of hearing and that he has no
objection for recording a plea on his behalf of a
Counsel and in taking evidence in his absence.
(iv) While dealing with the application seeking
permanent exemption from appearing in the case
as aforestated, if, the Court for any reasons is of
the opinion that such exemption should not be
granted, it may do so by recording or indicating
reasons for rejecting such prayer.
 (v) It is open for the Court to grant exemption
which is either permanent or for a specific period,
depending upon the facts of each case, on the
conditions as it deems fit and proper, requiring
the accused to file an undertaking as indicated
earlier.
(vi) In a given case, the Court may record a plea
of the accused even when his Advocate makes
such plea on his behalf in a case where personal
appearance of the accused is dispensed with on
his furnishing the undertaking in terms of Clause
(iii). However, it is open for the Court to refuse
such permission for reasons to be recorded
separately.
(vii) The Court should avoid issuance of non-
bailable warrant in the first instance to secure
presence of the accused facing trial and it should
be applied as a last resort.
(viii) If a Counsel for the accused fails to appear
in the matter and his absence impedes further
progress of the proceedings including
examination of witnesses, the Court may resort to
any other course as may be available under the
provisions of the Code to secure presence of the
accused, including issuance of NBW and may
cancel the order of exemption and in such case
may or may not grant exemption any more.
(ix) The Court should avoid requiring the
accused or his Advocate to apply for exemption on
every date of hearing.
(x) While exercising the powers to grant
exemption under any circumstance, the Court
shall not compromise with the further progress of
the proceedings and see to it that the presence or
absence of either of the parties does not impede
the proceedings.
(xi) In a given case, similar parameters be
applied for granting exemption to the
complainant if his absence is not likely to cause
prejudice, if any, to the accused or hinder the
progress of the case/complaint."
7. Perusal of the guidelines laid down by the Supreme Court
shows that the Magistrate has a power to issue non-bailable
warrant but that should ordinarily be issued as a last resort.
Before issuing a non-bailable warrant, the Magistrate may
issue summons and then a bailable warrant and only if the
presence of the accused is not secured, he may have to take
resort to the provision of issuance of non-bailable warrant.
In number of judgments of the Apex Court and this Court, it
has been held that the Magistrate should not insist on the
presence of the accused at all times unless it is absolutely
necessary. The ratio of the said judgments, therefore, in my
view, squarely applies to the facts of the present case.
8. Order is, accordingly, set aside. The non-bailable warrant
issued by the Magistrate is quashed.
9. Application is allowed and disposed of.
Application allowed.