1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 773 of 2016
Petitioners : 1) Shankar son of Ramkrishnarao Giradkar, aged
about 60 years, Occ: retired, resident of 91,
Gurudeo Nagar, Nagpur
2) Shrikant son of Sadashivrao Naringe, aged
about 60 years, Occ: Retired, resident of 485/A,
Professor Colony, Hanuman Nagar, Nagpur
3) Gajanan Bhaskarrao Tekade, aged about 60
years, Lcc: Retired, resident of Naik Road, Mahal,
Nagpur
4) Prabhakar son of Shamrao Chedge, aged about
72 years, Occ: Retired, resident of Dakshin Murti
Chowk, Mahal, Nagpur
5) Mahadeorao Govind Nerkar, aged about 77
years, occ: Retired, resident of near RSS Building,
Mahal, Nagpur
6) Anil son of Dattatraya Mule, aged adult,
Occ: retired, resident of Tatya Tope Nagar, Nagpur
versus
Respondent : The State of Maharashtra, through Crime
::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:03 :::
2
Branch, Nagpur
Shri D. V. Chauhan, Advocate for petitioners
Shri A. M. Deshpande, Addl. PP for respondent-State
--------
Coram : S. B. Shukre, J Dated : 3rd October 2016 Oral Judgment
1. Heard. Rule. Rule made returnable forthwith by consent of parties.
2. By this writ petition, order dated 2.9.2016 passed by the learned Judicial Magistrate, First Class, Court No. 2, Nagpur in Regular Criminal Case No. 1216 of 2009 issuing non-bailable warrant against the petitioners, has been challenged.
3. Shri D. V. Chouhan, learned counsel for the petitioners submits that the impugned order is arbitrary and illegal as it does not consider the order dated 31.8.2009 granting permanent exemption to the petitioners and the law settled by the Honourable Supreme Court.
4. Shri A. M. Deshpande, learned Additional Public Prosecutor for the respondent-State submits that the discretion available to the learned Magistrate to issue non-bailable warrant needs to be exercised judiciously by keeping in view the law settled by the Honourable Supreme Court.
::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:03 ::: 35. On going through the papers annexed with the writ petition with the assistance of learned counsel for the parties, I have no doubt in my mind that the impugned order is capricious, arbitrary and illegal. In this context, it would be useful to refer to the law laid down by the Honourable Supreme Court in the case of Vikas v. State of Rajasthan reported in (2014) 3 SCC 321 wherein it has been observed by the Apex Court that in order to secure the presence of the accused, the Court should issue first summons simpliciter or bailable warrant, failing which it should issue non-bailable warrant. It is held that the discretion of court to issue non-bailable warrant should be exercised judiciously and sparingly with circumspection and not in a routine manner. The Apex Court further observed that issuance of non-bailable warrant will be justified only in the facts and circumstances of the case where the Court is satisfied that the summons or bailable warrant is not likely to produce the desired result.
6. In the instant case, the Judicial Magistrate, First Class, Court No. 2, Nagpur had granted exemption from personal appearance to the petitioners vide order dated 31.8.2009 inter alia on the condition that they will remain present before the Court as and when required. If at all the learned Magistrate wanted the petitioners, who were duly represented by counsel, to put in appearance on a particular date, a specific direction could have been given to them through their lawyer or order could have been passed in that behalf. That appears to have not been done by the learned Magistrate and straightway, non-
::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:03 ::: 4bailable warrants have been issued against the petitioners. For all these reasons, impugned order is capricious, arbitrary and illegal. It cannot be sustained in the eye of law.
7. In the result, impugned order is quashed and set aside. Non-
bailable warrants issued against the petitioners are cancelled. It is, however, directed that the petitioners shall appear in the trial Court as and when specific direction is issued by the learned Magistrate. Writ Petition is thus allowed and disposed of.
True copy of the judgment, duly authenticated, be issued to learned counsel for the petitioners and learned Additional Public Prosecutor.
S. B. SHUKRE, J joshi ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:03 ::: 5 Certificate I certify that this Judgment uploaded is a true and correct copy of the original signed judgment.
Uploaded by -
H S Joshi, Private Secretary to Hon'ble Judge Uploaded on - 4.10.2016.
::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:03 :::