Baldevbhai R. Patel vs The State Of Maharashtra
2021 Latest Caselaw 14360 Bom

SHAMBHAVI                                                            39-WP-3441-2021.odt
NILESH
SHIVGAN

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
SHAMBHAVI
NILESH SHIVGAN
Date: 2021.10.06             CRIMINAL APPELLATE JURISDICTION
17:01:29 +0530


                                WRIT PETITION NO.3441 OF 2021

                      Baldevbhai R. Patel                       ... Petitioner
                           Vs
                      The State of Maharashtra                 ... Respondents
                                                   ...

Ms. Alpa T. Javeri for the Petitioner.

Smt. Sharmila Kaushik, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : OCTOBER 4, 2021.

P.C. :

Heard.

2 Petitioner is accused in Criminal Case No.

606/PW/2019 pending in the Court of Metropolitan

Magistrate 71st at Bandra. His attendance in the said

proceedings was exempted by the learned Magistrate

on 2nd March, 2021 upon an assurance that he will

remain present on 3rd September, 2021 so that charge

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could be framed against him. An application was

moved on 3rd September, 2021 seeking exemption of

his presence. The application was rejected by the

learned Magistrate may be in view of the order passed

on 2nd March, 2021 followed by order, 'issue Non-

bailable Warrant', an application was moved, seeking

cancellation of NBW, but was rejected on 8 th

September, 2021. Feeling aggrieved by this order, this

Writ Petition is preferred.

3 Heard Ms. Javeri, the learned counsel for the

petitioner and the learned prosecutor for the State.

4 The learned counsel for the petitioner would

contend that accused was unable to attend the

proceedings on 3rd September, 2021 for the reason that

there was a marriage in the family and it was not

possible for him to travel from Gujarat to Mumbai being

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a Senior Citizen. Learned counsel for the petitioner

would rely on, marriage invitation card. It is further

submitted that the learned Magistrate ought not to

have issued NBW unless circumstances justify that

accused will not voluntarily appear. The learned

counsel relied on paragraphs 52 and 53 of the Apex

Court in the case of Inder Mohan Goswami v. State

of Uttaranchal 2008 AIR (SC) 251. These

paragraphs read as under:

"52 Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

*it is reasonable to believe that the person will not voluntarily appear in court; or *the police authorities are unable to find the person to serve him with a summon; or *it is considered that the person could harm someone if not placed into custody immediately.

53 As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-

bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue

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on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive."

5 Thus, in view of the guidelines laid down in

the afore-stated judgment, the learned Magistrate

ought not to have issued NBW. Yet, in the case in hand,

it appears on 2nd March, 2021 when petitioner's

presence was exempted upon understanding that he

would remain present on 3rd September, 2021, a date

scheduled for framing the charge, but since he did not

appear, in the circumstances, the learned Magistrate

proceeded to issue NBW. Be that as it may, in

consideration of the facts of the case, the order issuing

NBW against the petitioner in the Criminal Case No.

606/PW/2019 pending in the Court of Metropolitan

Magistrate 71st at Bandra is hereby recalled and

quashed, subject to cost quantified at Rs.5,000/-, which

the petitioner shall deposit with Tata Memorial

Hospital, Parel within four weeks from today.

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                                             39-WP-3441-2021.odt




6         The learned counsel for the petitioner on

instructions undertakes that the petitioner shall attend

the proceedings before the learned Magistrate on

scheduled date and co-operate in the trial. For the

reasons stated above, petition is allowed in the

aforesaid terms and disposed off.

                               (SANDEEP K. SHINDE, J.)




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