IMPORTANT POINTS
(1) Magistrate has a power to issue non-bailable warrant but that should ordinarily be issued as a last resort.
(2) Magistrate should not insist on the presence of the accused at all times unless it is absolutely necessary.

JUDGMENT

V.M. Kanade, J.— Heard the learned counsel for the applicant and APP for the State.

2. By this application which is filed under Section 482 of the CrPC, 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 number 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: “Learned 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 CrPC.

4. The learned counsel for the applicant submitted that the 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 v. State of Uttaranchal and others.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 v. State of Maharashtra and others2, 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 canceling 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, th