Andhra Pradesh High Court - Amravati
Sadda Srinivasulu Reddy vs State Of Andhra Pradesh, on 19 July, 2022
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI
HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.5059 OF 2022
Sadda Srinivasulu Reddy ... Petitioner
Versus
The State of Andhra Pradesh represented by
Represented by its Public Prosecutor and another. ... Respondents
Counsel for the petitioner : Mr. M.V.Subba Reddy
Counsel for the 1st respondent : The Assistant Public Prosecutor
Counsel for the 2nd respondent : --
ORDER:
Heard learned counsel for the petitioner and learned Assistant
Public Prosecutor for the 1st respondent-State. Notice to the 2nd
respondent is deemed not necessary in view of the settled legal
position.
2. The petitioner herein is accused No.7 in P.R.C.No.2 of 2022 on
the file of the Court of Judicial Magistrate of First Class, Atmakur,
SPSR Nellore District.
3. Learned counsel for the petitioner submits that the petitioner
was not arrayed as accused at the first instance and infact the police
had submitted a charge sheet, inter alia, mentioning that there is no
involvement of the petitioner at the alleged offence. He further
submits that despite the same, the learned Magistrate has taken
cognizance of offence and instead of issuing of summons,
straightaway issued Non-Bailable Warrant against the petitioner. He
submits that the procedure adopted by the learned Magistrate is not
tenable in law and in this regard the learned counsel placed reliance
on the judgments in M/s.Ramakrishan Agencies v. State of A.P.1
and in Bhagawan Premchendani v. State of A.P.,2 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 depricaled. The discretion vested in them should be
properly exercised to secure the ends of justice but not to penalise or harass an individual with
the procedural wrangles of the Court more so without visualising 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 lo after coming to the conclusion
that there is no other way to secure the presence of the accused. In fact in Ramojt Rao v.V.V.
Rajam in Cr.M.P.No.4424/97 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."
4. Considering the submissions made and in the light of the legal
position, this Court is inclined to set aside the Docket Order dated
31.01.2022 passed by the learned Judicial Magistrate of First Class,
Atmakur, SPSR Nellore District, and the NBW issued against the
petitioner stands recalled. However, the petitioner shall appear before
the learned trial Court on the next date of adjournment.
5. Accordingly, the Criminal Petition is disposed of. Consequently,
miscellaneous applications, pending if any, shall stand closed.
_____________________
NINALA JAYASURYA, J
Date: 19-07-2022
Note: Furnish C.C. in two (2) days.
B/o.
BLV
2000 (1) L.S.78
1998(1) ALT (Crl.) 110 A.P.
HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.5059 OF 2022
Dt: 19.07.2022
Note: Furnish C.C. in two (2) days.
B/o.
BLV
