ORDER :

J.B. Pardiwala, J.

Since the issues involved in both the petitions are more or less the same, those were heard analogously and are being disposed of by this common order.

2. By this application under Article 227 of the Constitution of India, the petitioner-original complainant calls in question the legality and validity of the order dated 24th November, 2015 passed by the Metropolitan Magistrate, Court No. 16, Ahmedabad below application Exhibit-61 in Criminal Case No. 9868 of 2013.

3. The case of the complainant may be summarised as under:

3.1 A private complaint has been lodged in the court of the Metropolitan Magistrate at Ahmedabad for the offence punishable under sections 463, 464, 465, 295A, 120B read with section 34 of the Indian Penal Code as well as under the provisions of the Juvenile Justice Act. The complaint relates to publication of a forged Government Gazette pertaining to the "Baldiksha". It appears that cognizance was taken upon the said complaint and the same has culminated in Criminal Case No. 9868 of 2013. One Acharya Shri Kirtiyashuri Maharaj Saheb, a Jain Monk is an accused. It also appears that the pre-charge evidence is being recorded. The complainant is in the box.

3.2 It is the case of the complainant that till this date, one of the co-accused, namely, Acharya Shri Kirtiyashuri Maharaj Saheb has not remained present before the trial court. It is also the case of the complainant that although bailable warrant has been issued by the trial court, yet on one pretext or the other, the same is being evaded and all attempts are made to see that the same is not served upon the accused.

3.3 In such circumstances referred to above, the complainant preferred an application Exhibit-61 with a prayer that non-bailable warrant be issued. The learned Additional Chief Metropolitan Magistrate thought fit to reject the said application. Being dissatisfied, the complainant has come up with this application.

4. Although, this Court has not issued notice till this date, Mr. P.M. Thakkar, the learned senior advocate made a request that he may be heard on behalf of the accused Acharya Shri Kirtiyashuri Maharaj Saheb. Mr. Thakkar submitted that the accused has not been made party in this petition.

5. Mr. Gadhvi, the learned advocate appearing for the complainant submitted that the presence of the accused who is avoiding the court proceedings is necessary. He submitted that if the bailable warrant is not executed for one reason or the other, then the Court should have issued non-bailable warrant. He submitted relying on the provisions of section 273 of the Cr. P.C that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. He submitted that till this date, no application under section 205 of the Cr. P.C has been filed by the accused praying for dispensation with the personal attendance and permitting the accused to appear through his lawyer.

6. Mr. Thakkar, the learned senior advocate clarified that on each date of the hearing, his client has preferred an application praying for exemption through the concerned advocate and such applications have been allowed so far.

7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the order impugned.

8. The impugned order passed by the Magistrate concerned is a discretionary order. The issue involved or rather raised is not one of the question of jurisdiction. Indisputably, the pre-charge evidence is being recorded. The charge is yet to be framed. For the present, I am not going into the allegations levelled by the complainant that on one pretext or the other, the execution of the bailable warrant is being evaded. At an appropriate time, if the circumsta