THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.6858 OF 2020
ORDER:
This criminal petition is filed under Section 482 Cr.P.C. seeking to quash the docket proceedings dated 28.10.2020 in Crl.M.P.(SR) No.710 of 2020 in C.C.No.137 of 2017 passed by the XIV Metropolitan Magistrate, Cyberabad at L.B.Nagar.
The petitioner herein is the first accused in C.C.No.137 of 2017. The offences alleged against the petitioner herein are under Section 498A, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act.
Learned counsel for the petitioner would submit that the police without issuing any notice under Section 41-A Cr.P.C. to the petitioner herein, completed the investigation and filed the charge sheet. The same was taken on file vide C.C.No.137 of 2017 showing the petitioner herein as absconding and requesting the learned Magistrate to issue NBWs against the first accused. Accordingly, NBWs were issued against the petitioner-A.1 on 12.05.2017 itself.
The petitioner herein has filed an application under Section 70(2) Cr.P.C. seeking to recall the said NBWs issued against him on the ground that he came to know 2 about issuance of the said NBWs recently and that he is staying at United States of America at present. The learned XIV Metropolitan Magistrate, Cyberabad at L.B.Nagar, has returned the said application with the following endorsement:
'As per the SOP instructions of the Hon'ble High Court, Court is functioning and due to lock down Court is not entertaining re-call petition as per SOP.
Hence petition is returned.' Learned counsel for the petitioner relying on the principle held by High Court of Judicature of Andhra Pradesh at Hyderabad reported in K.L.MANOHAR V/s. SWADHARMA SWARAJYA SANGHA, SEC'BAD1 and ARUNKUMAR N.CHATURVEDI V/s. THE STATE OF MAHARASHTRA2 would submit that the application under Section 70(2) Cr.P.C. can be filed in the absence of the accused. Learned counsel for the petitioner has also filed Standard Operating Procedure (SOP) issued by this Court dated 08.06.2020 vide ROC No.394/SO/2020 wherein it is specifically mentioned that normally Courts are insisting for the presence of the accused to get the NBWs re-called. NBWs can be recalled even in the absence of the accused if plausible explanation is offered 1 2000 (1) ALD (CrL.) 586 (AP) 2 2013 SCC OnLine Bom 1607 3 for such absence. There is no provision in the said SOP that the learned Magistrate cannot receive the application under Section 70(2) Cr.P.C. filed by the accused in the absence of the accused.
In the light of the law laid down in the above said judgments and also the SOP dated 08.06.2020 issued by this Court, the docket proceedings dated 28.10.2020 passed by the learned XIV Metropolitan Magistrate, Cyberabad at L.B.Nagar, in Crl.M.P.(SR) No.710 of 2020 in C.C.No.137 of 2017 are erroneous, contrary to the law laid down by the judgments cited supra. The learned Magistrate can as well receive the application filed by the petitioner under Section 70(2) Cr.P.C. in his absence and pass orders on merits. Instead of doing so, learned Magistrate has returned the said application. Therefore, they are liable to be quashed.
Accordingly, the docket proceedings dated 28.10.2020 passed by the learned XIV Metropolitan Magistrate, Cyberabad at L.B.Nagar, in Crl.M.P.(SR) No.710 of 2020 in C.C.No.137 of 2017 are quashed. Learned Magistrate is directed to receive the petition filed by the petitioner under Section 70(2) Cr.P.C. even in the absence of the petitioner and pass appropriate orders in accordance with law to his satisfaction. 4
Pending miscellaneous petitions, if any, shall stand closed in the light of this final order.
__________________ K. LAKSHMAN, J Date: 20.01.2021 pgs