IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SRI R.M.S. KHANDEPARKAR AND SRI A.A. SAYED, JJ.

Mr. Raghuvansh Dewanchand Bhasin — Petitioner

Versus

State of Maharashtra —Respondents

CRIMINAL WRIT PETITION NO.1086 OF 2002

Decided on : 26TH NOVEMBER, 2007

Advocates appeared

Mr. R.D. Bhasin - petitioner- in-person

Mr. P.S. Hingorani, APP for respondent Nos. 1 and 2.

JUDGMENT

R.M.S. KHANDEPARKAR, J.

1. Whether the respondent No.2 could have been arrested the petitioner on the strength of an warrant for arrest which had been already cancelled, and various other connected issues are sought to be raised in the petition.

2. A complaint came to be lodged against the petitioner being C.C. No.163/S/2000 in the Metropolitan Magistrate, 37th Court Mumbai, by one Mr. Prem Harchandrai which came up for hearing on 7th August, 2002 and on the ground that the petitioner was not present in the Court, a non-bailalble warrant came to be issued against the petitioner making it returnable on 31st October, 2002, and the said non-bailable warrant was forwarded to the Colaba Police station for its execution. However, on 12th August, 2002 the said warrant was cancelled by the learned Magistrate.

3. On 15th August, 2002 the complainant Prem Harchandrai approached the Colaba Police station and insisted for arrest of the petitioner in pursuance of the said warrant. After verifying records at the Colaba Police Station with the help of one Police Constable Mr. Chavan, and on perusal of the said non-bailable arrest warrant bearing No.369 of 2002 issued on 7/8/2002 the respondent No.2 herein, who was the Inspector of Police at Colaba Police station, directed the constable to accompany the complainant Prem Harichandrai and to apprehend and arrest the petitioner. Accordingly, after having identified the petitioner by the complainant and confirmed by the petitioner himself, he was sought to be arrested by the said constable. On that occasion the petitioner informed the constable as well as the respondent No.2 that the warrant under which he was sought to be arrested had already been cancelled. The respondent No.2 thereupon tried to contact the Public Prosecutor Mr.Tatkare, to enquire as to whether he had knowledge about the cancellation of the said warrant. However, Mr. Tatkare could not give any information in that regard. The petitioner was thereupon detained in the police station for some time and then was produced before the Magistrate at about 2 p.m., thereupon he was ordered to be released.

4. The petitioner procured necessary confirmation about the cancellation of the warrant on the next day and produced the same before the respondent No.2 on 16th August, 2002, a copy of which is found to have been annexed to the petition at Exh. "A". The said Exh. "A" clearly reveals that the warrant which was issued on 7th August, 2002 against the petitioner in Criminal case No. 163/S/2000 was cancelled on 12th August, 2002.

5. In the background of above facts, the first point which is sought to be raised by the petitioner is whether the trial Court was justified in issuing non-bailable warrant against the petitioner merely because the petitioner had failed to appear in the Court on 7th August, 2002 in relation to the criminal case against him.

6. The power and jurisdiction of the Court to issue appropriate warrant against an accused on his failure to attend the Court on the date of hearing of the matter cannot be disputed. However, such a power has to be exercised judiciously and not arbitrarily. In case, the accused fails to remain present on the date of hearing of the matter, who had been previously either directed or called upon to remain present, certainly a warrant can be issued to secure his presence, as the absence of accused in such circumstances could per se reveal reluctance on his

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