Bombay High Court
Shankar S/O Ramkrishnarao ... vs State Of Maharashtra, Thr. Crime ... on 3 October, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 774 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) Manohar son of Narhari Mendjoge, aged about
92 years, Occ: Retired, resident of Sudarshan Chowk,
Itwari, Nagpur
versus
Respondent : The State of Maharashtra, through Crime
Branch, Nagpur
::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:56:04 :::
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Shri D. V. Chauhan, Advocate for petitioners
Shri A. M. Deshpande, Addl. PP for respondent-State
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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. 1217 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.
5. 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-
bailable 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.
ig S. B. SHUKRE, J
joshi
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.
