Sec. 138 nia
P.C. Joshi
(Querist) 13 July 2013
This query is : Resolved
Friends,
I hve a typical issue releting to complaint filed under sec. 138 in Channai court by a Delhi based company. past one and half years the summon/warrant has not been served by one reson or other.
The acuused was firstly absconding so summons could not be issued. AT present the accused is in Jail under 420 case. In the last hearing the MM issued bailable warrant against the accused to be services through the police station having the jurisdiction over the place of Jail/investigating the 420 case against the accued.
When the police approached him in Jail for servicing of warrant for next date scheduled on 22nd July, the accused refused to receive the Warrant. (As per the version of our advocate in Chennai lawyer dealing with the case)The police has returned the warrant to the MM with the reason of non servicing.
My queries are :
1. When the accused in not absonding i.e. he is in prison, does he have an option to refuse to receive the warrant without taking the bail.
2. Who can grant the bail to the accused in this particular case whether the poice or the MM.
3. What option we have to seek from the Magistrate on the next hearing. can the Court issue non-bailable warrant.
4. Suppose the accused comes out of jail by the time of servicing of NBW on next hearings or delibrately refuses to receive the NBW which in Jail what will the next legal court.
I would like to have the views from the learned members om the above queries.
Thanks & Regads,
P.C. Joshi
Ajay Bansal
(Expert) 14 July 2013
File an application in Trial Court of 138 N.I. Act for issuance of production warrant of accused so that he could be brought into court. As far as bail is concerned, only aforesaid Court can grant the bail to him.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 July 2013
This is a summons case hence production warrant is not applicable.
NBW issued routinely in cheque cases have been disapproved by APEX COURT and have issued stringent guide lines.
It is just that courts and defense advocates are not aware of the same.
In such cases even after issue of NBW any active defense advocate can file revision and the matter will linger for long.
P.C. Joshi
(Querist) 14 July 2013
Sir,
Thanks to all of you But if a warrant is issued through police how can the accused refuse to accept the same apecially when he is in the jail and not absconding. this way tehre is no end accused will delibrately avoid the servicing of warrant.
If a bailable warrnt is issued, the accused has to appear in the court on the date of hearing and take his bail. Is there different procedure for sec 138 matters. Pls through some light.
R Trivedi
(Expert) 15 July 2013
As suggested by Mr Bansal only remedy is production warrant under S.267 CrPC.
It was funny on the part of magistrate to issue bailable warrant for a person in jail.
Guest
(Expert) 17 July 2013
It seems the querist himself is in some confusion about the terms of warrant and the summon. He needs to recheck the position of his case, as warrant is not issued for serving to the concerned offender, but for his arrest by the police.
P.C. Joshi
(Querist) 17 July 2013
Thanks all learned members.
Dear Mr Dhingra,the accused was issued summons on various occasions earlier but he was hiding, so summons could not be issued to him. Then the accused was arrested in a cheating case and imprisoned in a Chennai jail. We requesedt the MM to issue the production warrant. but the MM issued a warrant through the police station which arrested him in the cheating case. When the police went to serve the warrnt the accused refused to acknowledge the same.can the accused which is available in the jail refuse to acnkowledge the warrnat without giving bail.i think the action of the police is not fair, they should have arrested the accused and produced before the Magistrate.
please advise, what is the remedy for us now the next date of hearing is 22nd July.
Thanks
P.C. Joshi
Guest
(Expert) 17 July 2013
It is not understood, how an already arrested person can be arrested again when he is already behind the bars? It seems you would not have informed the MM that he is already in jail. At the most you can get the summons delivered through the jail authorities, under whom he is serving imprisonment.
R Trivedi
(Expert) 17 July 2013
He says magistrate issued the BW through the police station which arrested him....
So magistrate knew he was in custody, still Ld magistrate adopted this course. This shows total lack of understanding of law, not only by the ld magistrate but by his counsel as well. His counsel should have pointed out, that how police can take out a person from jail under BW ? There is a separate and distinct procedure under CrPC for this kind of eventuality.
