Madana Kumar Saney vs The State Of Telangana
2021 Latest Caselaw 111 Tel

   THE HONOURABLE SRI JUSTICE K. LAKSHMAN

        CRIMINAL PETITION No.6858 OF 2020

ORDER:

This criminal petition is filed under Section 482

Cr.P.C. seeking to quash the docket proceedings dated

28.10.2020 in Crl.M.P.(SR) No.710 of 2020 in C.C.No.137

of 2017 passed by the XIV Metropolitan Magistrate,

Cyberabad at L.B.Nagar.

The petitioner herein is the first accused in

C.C.No.137 of 2017. The offences alleged against the

petitioner herein are under Section 498A, 506 IPC and

Sections 3 and 4 of Dowry Prohibition Act.

Learned counsel for the petitioner would submit

that the police without issuing any notice under Section

41-A Cr.P.C. to the petitioner herein, completed the

investigation and filed the charge sheet. The same was

taken on file vide C.C.No.137 of 2017 showing the

petitioner herein as absconding and requesting the

learned Magistrate to issue NBWs against the first

accused. Accordingly, NBWs were issued against the

petitioner-A.1 on 12.05.2017 itself.

The petitioner herein has filed an application under

Section 70(2) Cr.P.C. seeking to recall the said NBWs

issued against him on the ground that he came to know

about issuance of the said NBWs recently and that he is

staying at United States of America at present. The

learned XIV Metropolitan Magistrate, Cyberabad at

L.B.Nagar, has returned the said application with the

following endorsement:

'As per the SOP instructions of the Hon'ble High Court, Court is functioning and due to lock down Court is not entertaining re-call petition as per SOP.

Hence petition is returned.'

Learned counsel for the petitioner relying on the

principle held by High Court of Judicature of Andhra

Pradesh at Hyderabad reported in K.L.MANOHAR V/s.

SWADHARMA SWARAJYA SANGHA, SEC'BAD1 and

ARUNKUMAR N.CHATURVEDI V/s. THE STATE OF

MAHARASHTRA2 would submit that the application

under Section 70(2) Cr.P.C. can be filed in the absence of

the accused. Learned counsel for the petitioner has also

filed Standard Operating Procedure (SOP) issued by this

Court dated 08.06.2020 vide ROC No.394/SO/2020

wherein it is specifically mentioned that normally Courts

are insisting for the presence of the accused to get the

NBWs re-called. NBWs can be recalled even in the

absence of the accused if plausible explanation is offered

2000 (1) ALD (CrL.) 586 (AP)

2013 SCC OnLine Bom 1607

for such absence. There is no provision in the said SOP

that the learned Magistrate cannot receive the application

under Section 70(2) Cr.P.C. filed by the accused in the

absence of the accused.

In the light of the law laid down in the above said

judgments and also the SOP dated 08.06.2020 issued by

this Court, the docket proceedings dated 28.10.2020

passed by the learned XIV Metropolitan Magistrate,

Cyberabad at L.B.Nagar, in Crl.M.P.(SR) No.710 of 2020

in C.C.No.137 of 2017 are erroneous, contrary to the law

laid down by the judgments cited supra. The learned

Magistrate can as well receive the application filed by the

petitioner under Section 70(2) Cr.P.C. in his absence and

pass orders on merits. Instead of doing so, learned

Magistrate has returned the said application. Therefore,

they are liable to be quashed.

Accordingly, the docket proceedings dated

28.10.2020 passed by the learned XIV Metropolitan

Magistrate, Cyberabad at L.B.Nagar, in Crl.M.P.(SR)

No.710 of 2020 in C.C.No.137 of 2017 are quashed.

Learned Magistrate is directed to receive the petition filed

by the petitioner under Section 70(2) Cr.P.C. even in the

absence of the petitioner and pass appropriate orders in

accordance with law to his satisfaction.

Pending miscellaneous petitions, if any, shall stand

closed in the light of this final order.

__________________ K. LAKSHMAN, J Date: 20.01.2021 pgs