There ARE INSTANCES IN WHICH COURTS HaVE GRANTED PERMANNET EXEMPTION FROM APPEARANCE OF THE COMPLAINANT AND ALSO ACCUSED. iN THE FOLLOWING CASE THE COURT GRANTED PERMANANT EXEMPTION FROM APPEARANCE OF THE COMPLAINANT AND CANCELED THE BAILABLE WARRANTS. iF THE COMPALIANT OR ACCUSED IS SUFFERING FROM ILLHEALTH ETC THE COUET MAY DISPENSSE WITH YOUR APPEARANCE PERMANENTLY.If you appreciate this answer please click the thank you button on my profile./Forum.Anyway you are not saying that permanently youu wouod not apppear in cxouert. You categorically statd that if necxessary you would be present in court within 7 days of Notice.You've a good case. In case th ecourt dismisses your application you appeal against the High court decision inSupreme Court.Better you give an undertaking in writing to the Highcourt prior to its coming for heaing that if necessaryh within 7 dsays notice you will be present in court.
Judgement of Bombay High court:.
Bombay High Court
Ramesh Kotecha vs The State Of Maharashtra on 28 June, 2010
Bench: V.M. Kanade
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 2966 OF 2010
Ramesh Kotecha ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr.Subhash Jha i/b. M/s.Law Global for the
Applicant.
Mr.S.R. Shaikh, APP for the State.
ig CORAM : V.M. KANADE, J.
DATED : JUNE 28, 2010 P.C. :-
1 Heard the learned Counsel for the applicant and APP for the State.
2 By this application which is filed under Section 482 of the Cr.P.C., the applicant takes exception to the order passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai, dated 18th June, 2010. By the said order, the learned Magistrate was pleased to reject the application made by the applicant s Advocate for exemption and refused to cancel the non-bailable warrant. Brief facts are as under :-
3 A complaint was filed against the present applicant for the offence punishable under Section 354 of the IPC which was registered with the Cuffe Parade Police Station, Mumbai. After filing of the complaint, the complainant remained absent on umber of dates. Thereafter, however, her statement was partly recorded on 11th June, 2009. Thereafter, the case was adjourned to 11th August, 2009, 27th August, 2009, 8th October, 2009, 24th November, 2009, 15th December, 2009, 7th April, 2010, 13th April, 2010 and finally to 18th June, 2010. On 13th April, 2010, when the matter appeared before the court, complainant Ms.Leena Francis Soaz was present and she informed the trial court that she was contemplating not to proceed with the case and therefore, sought time to consider this aspect. The learned Magistrate, accordingly, in view of the request made by her, adjourned the case on 18th June, 2010. On 18th June, 2010 when the matter was called out, the applicant s Advocate was not present. The accused also was not present. An application was filed for exemption and the said application was ready. However, since the applicant s Advocate before entering the court room, the learned Magistrate was pleased to issue non-
bailable warrant by passing the following order :-
Accused remains absent. Issue NBW against accused.
Thereafter, the applicant s Advocate made an application for exemption. In the said application, it was mentioned that the applicant was unwell and was unable to attend the court and therefore, it was prayed that the accused should be exempted from appearing in the court on that day. This application was also rejected by passing the following order :-
Ld.APP present.
Holding Advocate present.
Application for exemption rejected.
Issue NBW.
Being aggrieved by the said order, the applicant has preferred this application under Section 482 of the Cr.P.C.
4 The learned Counsel for the applicant
submitted that the
ig learned Magistrate erred in
issuing non-bailable warrant and in not granting
exemption to the accused from appearing in the
court. He submitted that the complainant had
remained absent on number of occasions and she was also contemplating withdrawal of the complaint.
Under these circumstances, the learned Magistrate was not justified in issuing the non-bailable warrant and thereafter, refusing to cancel it when an application for exemption was made. He invited my attention to the judgment of the Apex Court in Inder Mohan Goswami and another vs. State of Uttaranchal and others, reported in (2007) 12 SCC 1. He submitted that the Apex Court had held that non-
bailable warrant should normally not be issued if the presence of the accused could be secured. The circumstances under which the said warrant could be issued was laid down in the said judgment. He also invited my attention to judgment of the learned Single Judge of this Court in the case of Bhaskar Sen vs. State of Maharashtra & others, reported in 2004(2) Bom.C.R.(Cri.) 674 wherein similar guidelines were laid down by the learned Single Judge of this Court.
5 I have heard both the learned Counsel for the applicant and APP for the State. In my view, the learned Magistrate was not justified in not granting exemption to the applicant and not cancelling non-bailable warrant which was earlier issued. The Roznama clearly indicate that the complainant had remained absent on number of dates which are mentioned hereinabove. She had also made a request for a further date in order to reconsider the continuation of the complaint. Under these circumstances, the learned Magistrate ought to have granted exemption particularly, when the application for exemption was filed in which it was stated that the accused was unwell and he could not appear before the Magistrate on that day. It would be relevant to refer to the observations made by the Apex Court in the case of Inder Mohan Goswami (supra) in this ig context. The Apex Court in paragraphs 50 to 54 has observed as under :-
50. Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776. French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice-liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.
51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non- bailable warrants.
52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-
bailable warrants should be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:
it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.
54 As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
6 Similarly, in the case of Bhaskar Sen (supra), the learned Single Judge had occasion to consider the provisions of Sections 205 and 251 of the Cr.P.C. In para 10 of the said judgment, the learned Single Judge has observed as under :-
10. A large number of cases are being filed in this Court seeking cancellation of NBW issued either while rejecting the application for exemption or for non-appearance of the accused on one date of hearing even if Advocate for the accused appears on his behalf. It is also observed that the complaints under section 138 of the Act are being filed against the companies in which all the directors are being arraigned as accused and their presence is being insisted on every date of hearing and no proceedings are being taken up in their absence. It is further observed that the progress of the cases under section 138 impedes for want of their presence. The fact remains as to why their presence is being insisted on every date of hearing. The idea is to see that the progress of the case is not hindered for want of presence of the accused or even the complainant for that matter. Keeping this in view and against a backdrop of the observations made in the foregoing paragraphs, I deem it appropriate to issue the following directions to the courts trying summons cases and in particular, cases under section 138 of the Act.
(i) Ordinarily the Court should be generous and liberal in exercising powers under sections 205 and 317 of the Code and grant exemption to the accused from personal appearance unless presence is imperatively needed or becomes indispensable. While considering the application for exemption, the Court should also bear in mind the nature of accusations and prejudice, if any, likely to be caused to the prosecution or the complainant, if personal attendance of the accused is dispensed with or to the accused if personal attendance is insisted upon, as case may be.
(ii) If an accused makes even the first appearance through a Counsel, he may be allowed to do so.
(iii) If an accused is seeking permanent exemption in a case, the Court, while dealing with such application, should take precautions that the accused gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a Counsel on his behalf would be present in the Court on all dates of hearing and that he has no objection for recording a plea on his behalf of a Counsel and in taking evidence in his absence.
(iv) While dealing with the application seeking permanent exemption from appearing in the case as aforestated, if, the Court for any reasons is of the opinion that such exemption should not be granted, it may do so by recording or indicating reasons for rejecting such prayer.
(v) It is open for the Court to grant exemption which is either permanent or for a specific period, depending upon the facts of each case, on the conditions as it deems fit and proper, requiring the accused to file an undertaking as indicated earlier.
(vi) In a given case, the Court may record a plea of the accused even when his Advocate makes such plea on his behalf in a case where personal appearance of the accused is dispensed with on his furnishing the undertaking in terms of Clause (iii). However, it is open for the ig Court to refuse such permission for reasons to be recorded separately.
(vii) The Court should avoid issuance of non-bailable warrant in the first instance to secure presence of the accused facing trial and it should be applied as a last resort.
(viii) If a Counsel for the accused fails to appear in the matter and his absence impedes further progress of the proceedings including examination of witnesses, the Court may resort to any other course as may be available under the provisions of the Code to secure presence of the accused, including issuance of NBW and may cancel the order of exemption and in such case may or may not grant exemption any more.
(ix) The Court should avoid requiring the accused or his Advocate to apply for exemption on every date of hearing.
(x) While exercising the powers to grant exemption under any circumstance, the Court shall not compromise with the further progress of the proceedings and see to it that the presence or absence of either of the parties does not impede the proceedings.
(xi) In a given case, similar parameters be applied for granting exemption to the complainant if his absence is not likely to cause prejudice, if any, to the accused or hinder the progress of the case/complaint.
7 Perusal of the guidelines laid down by the Supreme Court shows that the Magistrate has a power to issue non-bailable warrant but that should ordinarily be issued as a last resort. Before issuing a non-bailable warrant, the Magistrate may issue summons and then a bailable warrant and only if the presence of the accused is not secured, he may have to take resort to the provision of issuance of non-bailable warrant. In number of judgments of the Apex Court and this Court, it has been held that the Magistrate should not insist on the presence of the accused at all times unless it is absolutely necessary. The ratio of the said judgments, therefore, in my view, squarely applies to the facts of the present case.
Order is, accordingly, set aside. The non-
bailable warrant issued by the Magistrate is quashed.
9 Application is allowed and disposed of.
(V.M. KANADE, J.
