Mekala Devadas And Others vs State Of Andhra Pradesh

Ninala Jayasurya, J

Heard the learned counsel for the petitioner and learned Assistant Public Prosecutor for the 1st respondent. Notice to the 2nd respondent is deemed not necessary, in view of the settled legal position.

The present criminal petition is filed aggrieved by the docket order dated 12.07.2022 in C.C. No.113 of 2018 on the file of the Court of the III Additional Judicial First Class Magistrate, Rajamahendravaram.

The petitioners herein are Accused Nos.1 to 3 in the above said case. On 12.07.2022 the petitioners were absent and there was no representation on their behalf till 3.00 p.m., and the Trial Court issued Non Bailable Warrant(NBW)s against the petitioners, adjourning the matter to 19.07.2022.

Learned counsel for the petitioners submits that the petitioner No.1 is the brother of petitioner No.3 and the Petitioner No.2 is the wife of the Petitioner No.1. The marriage of daughter of de facto complainant was performed with son of petitioner No.3 and due to some family disputes, the de facto complainant filed a complaint against the petitioners. The petitioner Nos.1 to 3, are aged about 65 years, 62 years and 82 years respectively. She also submits that the petitioners are suffering from post covid health problems and the petitioner Nos.1 and 2, after better treatment in Belgium, are returning to India on 17.10.2022. Learned counsel while placing reliance on the decision in Ramoji Rao vs. V.V.Rajan, Criminal Petition No.4424 of 1997, dated 29.10.1997, inter alia, submits that the learned Magistrate has ample power to proceed with the case by dispensing with the presence of the petitioners even in a warrant case. In the light of the said decision, learned counsel urges that the order dated 25.8.2022 may be set aside and the NBWs issued against the petitioners may be recalled.

In Bhagawan Premchendani vs. State of A.P 1998 (1) ALT (Crl.) 110 A.P., it was held as follows:-

“As per Section 73 of the Criminal Procedure Code an N.B.W. can be issued only to secure the presence of any escaped convict, proclaimed offender or the person who is evading the arrest. In the instant case, being summons case, the question of arrest also will not arise. Further, the petitioner filed an application seeking dispensation of his presence on that day for the reasons slated in the affidavit. Instead of allowing the application, the learned Magistrate not only dismissed the application, but also even without giving time for his appearance issued N.B.W. Such conduct on the part of the Magistrate is deprecated. The discretion vested in them should be properly exercised to secure the ends of justice but not to penalize or harass an individual with the procedural wrangles of the Court more so without visualizing the evil consequences that will flow from the order that is going to be passed. This Court is often coming across with such type of orders passed by the Magistrates. Hence this Court would like to emphasize that the Magistrates should shed the wrong practice of issuing N.B.Ws. the moment the accused fail to appear in the Court without giving an opportunity to explain the circumstances under which the accused failed to appear in the Court and in the light of the language employed in Section 73 of Criminal Procedure Code an N.B.W. can be issued sparingly that too after coming to the conclusion that there is no other way to secure the presence of the accused. In fact in Ramoji Rao vs. V.V. Rajan, in Cr.M.P.No.4424 of 1997 dated 29.10.1997 this Court explained the legal position with regard to the appearance of the accused before a Magistrate and held that the Magistrate is having ample power to proceed with the case by dispensing with the presence of the accused even in a warrant case.”

Considering the submissions made and in the light of the said decision, this Court is of the considered opinion that the petitioners are entitled to the relief sought for.

Accordingly, the order dated 12.07.2022 is set aside and the NBWs issued against the petitioners stand recalled. However, the petitioners shall appear before the Trial Court on the date of adjournment i.e., on 14.11.2022 without fail.

Accordingly, the Petition is allowed. Miscellaneous applications, pending if any, shall stand closed.