Ramdas Indoriya vs Bablu Alias Dheeraj Sharma
2023 Latest Caselaw 10206 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                         BEFORE
    HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                        ON THE 5 th OF JULY, 2023
               MISC. CRIMINAL CASE No. 27096 of 2023

BETWEEN:-
RAMDAS INDORIYA S/O SHRI JAGRAM SINGH
INDORIYA, AGED ABOUT 54 YEARS, OCCUPATION:
GOVERNMENT SERVANT, R/O WARD NO 15, PURANI
BASTI, MEHGAON, DISTRICT BHIND (MADHYA
PRADESH)

                                                                ....PETITIONER
(BY SHRI ANAND PUROHIT - ADVOCATE )

AND
BABLU ALIAS DHEERAJ SHARMA S/O SHRI
RADHESHYAM SHARMA, R/O VILLAGE SEETAPUR
TEHSIL AND DISTRICT DATIA (MADHYA PRADESH)

                                                              .....RESPONDENT
(NONE )

      This petition coming on for admission this day, the court passed the
following:
                                   ORDER

Petitioner has filed this petition under Section 482 of Cr.P.C. against the order dated 16/8/2022 passed by JMFC, Datia in RCT No. 577/2012; whereby, application filed by petitioner under Section 70(2) of Cr.P.C. for recalling of warrant has been rejected.

Briefly stated facts of the case are that respondent filed a private complaint to the effect that on 26/9/2011 when he was took from Datia Jail to the Court of JMFC, suddenly he suffered ache in stomach as he was suffering from stone in stomach. When he asked police personnel to provide him medical

help then they asked him if he sees anybody out side the lockup he can call him for purchasing medicine and when he seen petitioner and others, he asked them for purchasing medicine for him over which they started abusing him and also beaten him.

On the complaint of the respondent, the Court took cognizance of offence and registered the case vide RCT No. 577/2012. When for nine years, petitioner remained absconding, the Court on 20/12/2021 issued permanent arrest warrant against him. Against the said issuance of arrest warrant, petitioner moved an application under Section 70(2) of Cr.P.C. which stood rejected vide impugned order, hence, petitioner is before this Court.

It is the submission of learned counsel for the petitioner that Court below erred in issuing arrest warrant against the petitioner directly without complying the provisions of Sections 62, 64, 65, 66, 67, 68 and 69 of Cr.P.C. Learned counsel further submitted that non-bailable warrant normally not be issued if presence of accused could be secured and in support of this submission he relied upon the decision of Apex Court in the matter of Inder Mohan Goswami and another Vs. State of Uttaranchal and Ors. (2007) 12 SCC

1. Heard learned counsel for the petitioner and perused the document appended with the petition.

From the perusal of order sheet of trial Court dated 24/5/2012 it is clear that on said that cognizance against the petitioner under Section 323 of IPC was taken and for securing his presence summons were issued; however, after issuance of summons he never remained present before the Court and ultimately vide order dated 20/12/2021 permanent arrest warrant was issued

against him and thereafter vide order dated 16/8/2022, his application under Section 70(2) of Cr.P.C. for recalling the arrest warrant was rejected. On the said date also, he remained absconding. Therefore, in the opinion of this Court, trial Court did not err in passing the impugned order; however, in the interest of justice, liberty is granted to the petitioner to move application under Section 70(2) of Cr.P.C. afresh before the trial Court while remaining personally present, which shall be decided by trial Court on same day so far as possible, on its own merits.

As regards judgment cited by learned counsel for the petitioner in the matter of Inder Mohan Goswami (supra) is concerned, same moves in different factual realm as in that case it has been observed that in normal parlance if presence of an accused can be secured through issuance of bailable warrants, then non-bailable warrant may not be issued; however, in the present case accused/petitioner remained absconding for 9 years and did not appear before the trial Court even after issuance of summons.

Cumulatively, petition fails and is hereby dismissed with liberty as aforesaid.

(ROOPESH CHANDRA VARSHNEY) JUDGE JPS/-

JAI PRAKASH Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e38ce14fcbb

SOLANKI 05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D8357, serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EBD48AE4F6 09F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2023.07.07 09:53:58 +05'30'