R.Uma Rani vs P.Ramesh
2023 Latest Caselaw 14058 Mad

                                                                                 Crl.O.P.(MD) No.18965 of 2023

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 20.10.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE G.ILANGOVAN

                                              Crl.O.P.(MD)No.18965 of 2023


                 R.Uma Rani                               ...Petitioner / Petitioner / Appellant
                                                          Vs.
                 P.Ramesh                                 ...Respondent / Respondent / Respondent

                 PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C, to
                 direct the Learned Judicial Magistrate (Fast Track), Uthamapalayam, Theni
                 District to consider the petition filed to recall the Non Bailable Warrant issued on
                 11.07.2023 in C.C. No.5 of 2018, on the same day of it's filing without insisting
                 the presence of the petitioner.
                                  For Petitioner   :Mr.A.S.Abul Kalaam Azad

                                                       ORDER

This petition is filed seeking direction to the Learned Judicial Magistrate

(Fast Track), Uthamapalayam, Theni District to consider the petition filed to

recall the Non Bailable Warrant issued on 11.07.2023 in C.C. No.5 of 2018, on

the same day of it's filing without insisting the presence of the petitioner.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.18965 of 2023

2.Originally the petitioner was convicted and sentenced to undergo 6

months S.I. and to pay a sum of Rs.2,00,000/-. Against the above said conviction,

this petitioner preferred an appeal before the Principal District Judge, Theni, in

Crl.A.No.51 of 2023. During the pendency of the above said appeal, he moved

Cr.M.P.No.2367 of 2023 before the Appellate Court, seeking suspension of

sentence, that was also ordered with conditions. One of the conditions is that the

petitioner was ordered to deposit a sum of Rs.40,000/-. That was also complied

by the petitioner and other condition is that he must be appeared before the trial

Court on every first working day of the calender month till the disposal of the

appeal. The above said order is dated 08.07.2022. After that, he was appearing

before the trial Court regularly. But on first July, 2023, he could not appear,

because his father in law was admitted in Emergency/Critical Care. He appeared

before the Court on the next working day, ie., 03.07.2023, instead of first July. In

the mean time, warrant was issued by the trial Court against him.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.18965 of 2023

3.Seeking cancellation of the above said order, he moved an application on

31.08.2023 and that was returned stating that this petition is not maintainable.

Thereafter, he moved copy application before the trial court and the same was

returned by the trial Court on 06.10.2023.

4.Now the grievance of the petitioner is that he is not in a position to appear

before the court, because of the above said warrant. Only the appellate Court is

competent to entertain any warrant to recall application, even though the order

has been issued by the trial court.

5.He also relied upon the Judgment passed by the Honourable Supreme

Court in the case of Surinder Singh Deswal Vs. Virender Gandhi @ Anr. in

Criminal Appeal Nos.1936 to 1963 of 2019 drawing attention of this Court to

Para No.19 it appears that the Appellate Court ought to have entertained this

petition for recall. Para No.19 reads as under;

19.It is for the Appellate Court who has granted

suspension of sentene to take call on non-complance and

take appropriate decision. What order is to be passed by

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.18965 of 2023

the Appellate Court in such circumstances is for the

Appellate Court to consider and decide. However, non-

compliance of the condition of suspension of sentence is

sufficient to declare suspension of sentence as having been

vacated.

6.In view of the above said decision made by the Honourable Supreme

Court, there shall be a direction to the Appellate Court namely Principal District

Judge, Theni, to entertain the warrant and recall application and decide the same

on its own merits. Since the original petition is available with the petitioner, he

can represent the same before the Appellate Court.

7.With the above directions, this Criminal Original petition is disposed of.

                 Speaking                : Yes / No                                  20.10.2023
                 NCC                     : Yes / No
                 Internet                : Yes / No
                 Index                   : Yes / No

                 VSG



https://www.mhc.tn.gov.in/judis
                                                                   Crl.O.P.(MD) No.18965 of 2023




                 To

                 1.The learned Principal District Judge,
                   Theni.

2.The learned Judicial Magistrate (Fast Track), Uthamapalayam, Theni.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.18965 of 2023

G.ILANGOVAN. J.

VSG

Crl.O.P.(MD)No.18965 of 2023

20.10.2023

https://www.mhc.tn.gov.in/judis