IMPORTANT POINT
Accused shall be heard before passing sentence in all criminal cases notwithstanding procedure to be adopted in trying the cases.

ORDER

Heard Sri V. Sai Kumar, learned counsel for petitioner. Learned Assistant Public Prosecutor takes notice for the Sate and opposed the application.

2. Sri V. Sai Kumar, learned counsel for petitioner would submit that the petitioner is an accused in C.C.162/2016 on the file of IV Addl. Senior Civil Judge-cum-V Addl.Chief Metropolitan Magistrate, Vijayawada; the case was posted for judgment to 24.05.2024; on that day, the accused did not appear due to health reasons and filed an application U/s.317 Code of Criminal Procedure, 1973 (hereinafter referred to ‘Cr.P.C.’) to dispense with his presence; learned Magistrate dismissed the application, proceeded with pronouncement of judgment, found the accused guilty for the offence U/s.138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘138 N.I.Act’) and accordingly, convicted him U/s.255(2) Cr.P.C.; learned Magistrate issued Non-bailable Warrant against the petitioner/accused for his production before the Court on hearing quantum of sentence as per law, for imposing sentence for the offence U/s.138 N.I. Act.

3. Later, the petitioner filed application on 29.05.2024 vide Crl.M.P.No.1940/2024, U/s.70(2) Cr.P.C. to cancel the warrant. The learned Magistrate vide order dated 29.05.2024, dismissed the sad application for the reasons stated in the order.

4. The petitioner again filed another application vide Crl.M.P.No.2371/2024 U/s.70(2) Cr.P.C. to cancel the warrant, and the learned Magistrate dismissed the said application also, observing that High Court vide order in Crl.P.No.3898/2024, dated 25.06.2024 held that “petitioner is at liberty to appear before the trial Court and then the trial Court may hear him on sentence and pass appropriate orders according to law”, while dismissing the application filed U/s.438 Cr.P.C.

5. The learned counsel for petitioner would submit that police are trying to execute the arrest warrant referred above, and the learned Magistrate dismissed the Crl.M.P.No.2371/2024 mechanically without considering the order of this Court in Crl.P.No.3898/2024.

6. Learned Assistant Public Prosecutor representing State opposed the application, contended that undisputedly the learned Magistrate delivered judgment in the case i.e., C.C.No.162/2016 on 24.05.2024 and as per law, he convicted the accused U/s.255(2) Cr.P.C. for the offence U/s.138 N.I.Act. The Magistrate shall hear the accused on quantum of sentence and pass appropriate order on quantum of sentence; In those circumstances, and also in view of the dismissal of Crl.P.No.3898/2024 filed by the accused U/s.438 Cr.P.C. with a direction to petitioner, to appear before the trial Court, and then the trial Court may hear him on quantum of sentence and pass appropriate orders according to law, there are no grounds to interfere with the impugned order dated 27.06.2024 rendered in Crl.M.P.No.2371/2024 by the learned Magistrate, and the present criminal petition is not maintainable in law.

7. In the light of above rival contentions, the point for consideration in this petition is as under:

“Whether the order dated 27.06.2024 passed in Crl.M.P.No.2371/2024 in C.C.162/2016 on the file of IV Addl.Senior Civil Judge-cum-V Addl.Chief Metropolitan Magistrate, Vijayawada, is liable to be quashed as prayed for U/s.482 Cr.P.C.”

8. Point:

The undisputed facts in the case on hand are that the petitioner is an accused in C.C.162/2016 on the file of IV Addl.Senior Civil Judgecum-V Addl.Chief Metropolitan Magistrate, Vijayawada. The said case was posted to judgment on 24.05.2024. On that day, the petitioner filed an application U/s.317 Cr.P.C. to dispense with his presence. It was dismissed by the learned Magistrate. The said order was not challenged before any higher forum. The learned Magistrate pronounced the judgment on 24.05.2024, found the accused guilty for the offence U/s.138 N.I.Act, convicted the accused U/s.255(2) Cr.P.C. for the said offence. Therefore, Magistrate to impose sentence on the accused, shall