M. Kutty vs M/s. Arihant Finance (India) Private Limited

Janarthanam, J.—M/s. Arihant Finance (India) Pvt. Ltd., represented by its Manager T. Jayaram, No. 18, 21st Avenue, Ashok Nagar,

Madras-600083 (respondent) lodged eight individual complaints against M/s. Essor Hotels Pvt. Ltd., represented by Director, No. 1089

Poonamallee High Road, Madras-600084 and Mrs. N. Kutty, W/o Mr. P. V. R. Kutty Menon, Director M/s. Essor Hotels, Pvt. Ltd. No. 84,

Mr. Nicholes Road, Chetpat, Madras-600031, arraying them as accused 1 and 2 for an alleged offence u/s 138 of the Negotiable Instruments

Act, 1881 (as amended by Act No. 66 of 1988).

All the eight complaints had been taken on file as C.C. Nos. 3573, 3658, 3861, 3574, 3540, 3655, 3738 and 3737 of 1995 by learned XVII

Metropolitan Magistrate, Saidapet, Madras-15.

It appears that subsequent to the taking of those complaints on file, process had been issued to accused 1 and 2 in all those cases and accused

1 and 2 entered appearance through a Counsel of their choice.

All those cases were listed for trial on 6-9-1996, on which date, the complainants were present; but accused 1 and 2 were absent and for

condoning the absence of accused 2 in Court, petitions Crl. M.P. Nos. 6247, 6426, 6245, 6244, 6443, 6242, 6241 and 6240 of 1996 u/s 317 of

the Code of Criminal Procedure, 1973 (Act No. II of 1974 for short ''The Code''), along with medical certificate had been filed and the petitions

so filed had ultimately been dismissed.

On the dismissal of the petitions so filed, non bailable warrants had been issued, adjourning all those cases to 17-10-1996. Aggrieved by the

dismissal of the petitions so filed u/s 317 of, the Code, accused 2 - Mrs. M. Kutty preferred revisions before this Court and also filed applications

for stay of execution of the Non bailable warrants so issued.

The registry took objections to the maintainability of all those revision petitions and before numbering them, all these revision petitions have been

posted before court for deciding the question of maintainability.

Arguments of Mr. G. Anbumani, learned counsel appearing for the petitioner-accused 2 were heard.

There is no pale of controversy that the trial court dismissed the petitions filed u/s 317 of the Code and inconsequence thereof, issued Non-

bailable warrants for the arrest and production of the petitioner accused 2 before Court. Pertinent it is to point out at this juncture, as earlier

indicated, that all these revisions had been filed only against the dismissal of the applications filed u/s 317 of the Code and not against the issuance

of non-bailable warrants, as a consequence of the dismissal of the applications filed u/s 317 of the Code.

Even assuming for argument''s sake that the order passed as a whole by the trial court is assailed. I am of the view that the revisions are not at all

maintainable. What is assailed of here is relatable to the order passed u/s 317 of the Code. On the face of the sanguine provisions adumbrated u/s

397(2) of the Code, which prescribes that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any

interlocutory order passed in any appeal, inquiry, trial or other proceeding, it goes without saying that the present revisions are not maintainable.

Further, assuming for argument''s sake that what is assailed of here is relatable to the issuance of a Non-bailable warrant for the arrest and

production of the petitioner-accused 2, even then these revisions are, not maintainable, on the face of the decision in Saleem, P.A. etc., v. State,

Rep. by Inspector of Police, R4 Pondy Bazaar Police Station Etc., (1994) 2 LW (Cri) 402. Paragraph 24 of the said decision, which is relevant

for the present purpose is couched in the following terms :

In view of the discussion as above, the following positions emerge :-

(1) Issuance of a warrant of arrest by a Court under the Code shall remain in force beyond the date fixed for its return, until it is cancelled or

executed.

Since the court, which issued the warrant has the power to cancel it, it is but necessary for the person against whom a warrant of arrest had

been issued to approach the said Court, by his personal appearance, for its cancellation, which issued it.

Once a person accused of an offence against whom a warrant of arrest had been issued makes his personal appearance, with a petition for its

cancellation, before the Court, which issued it, it behaves on its part not to take him into custody and send him to prison immediately after his

appearance, but to pass an order on such petition, forthwith, without brooking any sort of a delay and if the order so passed ends in his favour, he

shall be bound over to appear before court on an earliest date fixed for hearing on trial, as the case may be, or otherwise, he could be taken into

custody forthwith and sent to prison, with a direction to the prison authorities for his production before court on the earliest date fixed for such

hearing or trial is over, so as to enable it to proceed, with ease and grace, and without any obstruction whatever, thereby not affecting in the least

his right to speedy trial, a goal to be achieved, as enshrined under Article 21 of the Constitution, or on his application, being presented, release him

on bail, on his executing a bond for a specified sum, with sufficient number of sureties, for such sum to secure his appearance on the dates fixed for

hearing or trial, as the case may be.

However, a person aggrieved by an order of refusal of the cancellation by a Magistrate, who issued the same, can further agitate the same, if he

so desires, by filing a revision, either u/s 397 or 401 of the Code, and then resort to invoke the inherent power of this court u/s 482 of the Code, if

grounds for reassortment to such a course existed; and

Section 482 of the Code is not at all attracted for simpliciter ''recall'' of a warrant, but, on the other hand, it is getting attracted for execution of a

warrant, by issuance of a direction to a police officer or for that matter, any other person to whom it is issued, for its immediate compliance.

Looked at from any angle, in view of the reasons as stated above, all these revisions are not maintainable and they are accordingly rejected.

Consequently, Crl. M.Ps. for stay of execution of the non-bailable warrants, pending disposal of those revisions, are also rejected.

Petition dismissed.