Bombay High Court
Harshal S/O Bhagwanrao Umale vs State Of Mha. Thr. Pso Ps Kotwali ... on 3 August, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 533/2022
Harshal S/o Bhagwanrao Umale
Aged about 27 years, Occ. Private
Business, R/o. Tulsibag Road, Ali Miya
Khamb, Dist. Nagpur.
... PETITIONER
VERSUS
State of Maharashtra through
PSO, Police Station, Kotwali,
Nagpur City.
... RESPONDENT
_____________________________________________________________
Mr. D. H. Sharma, Advocate for petitioner.
Ms. M. Deshmukh, APP for respondent/State.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATE OF JUDGMENT : 03.08.2022.
ORAL JUDGMENT :
RULE. Rule is made returnable forthwith.
2. Heard finally by consent of respective parties.
3. The applicant is arraigned as an accused in Sessions Case
No. 599/2021 for the offence punishable under Sections 109, 302 read
with Section 34 of the Indian Penal Code ('IPC') and Section 135 of the
Maharashtra Police Act. The accused was released on bail during trial.
On 22.07.2022, the petitioner (accused No.2) was absent, that is why
the Trial Court has issued Non-Bailable Warrant ('NBW') and posted the
matter on 06.08.2022. On 25.07.2022, an application has been moved
to the Trial Court seeking cancellation of NBW (Exh.22), which was
rejected, that is why the petition.
4. The learned counsel appearing for the petitioner would
submit that only on a single default i.e. on 22.07.2022, the Trial Court
has issued NBW. It is submitted that on all earlier dates, the petitioner
was present in the Court. However, having regard to said fact, NBW
was issued without taking preliminary step like issuance of summons or
bailable warrant. According to the petitioner, there is no justification in
rejecting his application at Exh. 22 for cancellation of NBW.
5. It appears from the record that on 25.07.2022, the
petitioner did not remain present, but the application for cancellation
of NBW was moved through Advocate. The record indicates that the
application for cancellation was rejected. However, NBW remains as it
is, since petitioner was not present in the Court. In-fact, while seeking
the cancellation, the petitioner ought to have remained present in the
Court, otherwise, there would be no purpose in canceling the NBW or
rejection of such urge as the situation would remain as its stand. The
accused cannot take chance by filing application for cancellation by
remaining absent in the Court.
6. Be that as it may, it reveals that yet the evidence has not
been commenced. The sessions case was only for production and
appearance of the accused person. It is informed that yet charge has
not been framed. It reveals that on a single default that is absence of
petitioner on 22.07.2022, NBW was issued. True, the Trial Court is
well within his power to issue NBW as there is breach of bond
condition. The matter would have been different, if the accused has
been brought to the Court after execution of warrant. However, record
indicates that accused shown his bona fides by taking matter on board
and seeking for cancellation, but he was absent. It is not approvable
that on such single default, the Trial Court shall keep the accused
behind the bars, since already his entitlement for bail was tested on
merits and has been released on bail. In view of that, the petitioner
shall remain present before the Trial Court and seek for cancellation of
NBW, on which the Trial Court shall reconsider and pass appropriate
orders.
7. In view of above observations, petition stands disposed of in
above terms.
8. The petitioner undertakes to appear before the Trial Court
on 06.08.2022 on which the matter is fixed. In view of that, NBW shall
not be executed against him till 06.08.2022.
(VINAY JOSHI, J.)
Gohane
Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2022.08.04
10:10:59
+0530
