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Before the Madurai Bench of Madras High Court
P. DEVADASS, J.
M. Selvam
Versus
The Superintendent of Police, Madurai District, Madurai & Others
Crl.O.P.(MD).No. 16411 of 2014
Decided on : 05-11-2014
Non-Bailable Warrant - Cheque Bouncing Case - The court discussed the issuance of non-bailable warrants in a cheque bouncing case under Section 138 of the Negotiable Instruments Act. It emphasized the need for strict adherence to procedures and the consideration of granting bail on merits before issuing non-bailable warrants.
Fact of the Case:
The petitioner sought a direction to execute the non-bailable warrant issued against the accused in a cheque bouncing case. The police had not executed the warrant, leading to the petitioner's petition.
Finding of the Court:
The court directed the Judicial Magistrate to recall the non-bailable warrant and enforce the attendance of the accused, emphasizing the need to strictly follow the procedures laid down under the Code of Criminal Procedure.
Issues: The main issue was whether a bailable offence under Section 138 of the Negotiable Instruments Act could be made non-bailable by issuing a non-bailable warrant.
Ratio Decidendi: The court emphasized the need for strict adherence to procedures and the consideration of granting bail on merits before issuing non-bailable warrants. It also highlighted that the warrant issued in a cheque bouncing case should not become a blank cheque in the hands of the police.
Final Decision: The Criminal Original Petition was disposed of with the direction to recall the non-bailable warrant and enforce the attendance of the accused following the procedures laid down under the Code of Criminal Procedure.
Key Points: - The court directed recall of the non-bailable warrant and enforcement of attendance strictly following CrPC procedures (!) . - Emphasized strict adherence to procedures and considering bail on merits before issuing non-bailable warrants (!) (!) . - Acknowledged that while the offence under Section 138 NI Act is non-cognizable but bailable, non-bailable warrants should not be issued indiscriminately and must follow proper procedure to enforce attendance (!) (!) . - Highlighted that a warrant should not become a blank cheque in police hands and must be properly issued and executed (!) . - Observed that arrest warrants (non-bailable) are subject to due process under CrPC and Article 21 protections; recall was ordered due to lack of adherence to procedures (!) . - The petition was disposed of with directions to recall the N.B.W. and enforce attendance of the accused (!) . - The complainant’s role and police action in delaying execution of the N.B.W. were considered in the judgment (!) . - The matter involves a cheque bouncing case under Section 138 NI Act, where the offence is bailable and the procedure must be followed before resorting to non-bailable warrants (!) (!) . - The judgment clarifies that non-bailable warrants should be used only after exhausting bailable procedures if attendance cannot be enforced otherwise (!) . - Advocates and parties’ representations were considered but do not override procedural requirements established by CrPC (!) (!) .
The petitioner, who is the complainant in a cheque bouncing case in S.T.C.No.235 of 2012, came forward with this petition for a direction to the second respondent, the Inspector of Police, Karuppayurani Police Station, Madurai to execute the N.B.W. issued against the accused.
2. The learned counsel for the petitioner would submit that the third respondent received huge money and issued an useless cheque, in other words, without keeping sufficient amount in his bank account. Ultimately, it was dishonoured. Thus, the cheque bouncing case has been filed. In order to enforce the attendance of the accused, the learned Judicial Magistrate, Vadipatti issued non-bailable warrant, however, the police has not executed it.
3. On the other hand, the learned Government Advocate (Criminal side) would submit that actually non-bailable warrant has been issued to the Inspector of Police, Vadipatti and it is pending for execution.
4. It is a cheque bouncing case for an offence under Section 138 of the Negotiable Instruments Act. The offence is non-cognizable, but bailable.
5. One of the characteristic feature of a bailable offence is bail is 'as a matter of right', jail is an exception, when the accused wish to continue to have the hospitality of the jail, in other words, he does not offer bail. Distinctive feature of a non-bailable offence is bail is 'not as a matter of right, but before granting bail opportunity should be given to the prosecution'. Thus, 'nonbailable offence does not mean not bailable'. It is also bailable provided opportunity should be given to the prosecution and it should be considered on merits. This is with regard to a bailable offence and a non-bailable offence.
6. The question is whether bailable offence under Section 138 of Negotiable Instruments Act, which is made bailable in the Act could be made non-bailable by issuing a non-bailable warrant.
7. A person could be sent to jail pursuant to a warrant of arrest also. But it should be also strictly in accordance with law. Otherwise it will militate against Article 21 of the Constitution of India. But Courts are having the power to enforce the attendance of the accused. If situation is such that issuance of bailable warrant will not workout, the accused is a mighty person, he has no regard for law, he is having unholistic alliance at every level including police and the Court must record a finding and in such circumstances if his attendance cannot be enforced by bailable warrant, then only it can consider issuance of non-bailable warrant. It should be after exhausting the procedure for enforcing the attendance, by the issuance of a bailable warrant. Now, in this case, there is no clear cut information as to whether such procedure has been adopted by the learned Magistrate before issuing non-bailable warrant.
8. Indiscriminately cheques are being issued by the parties for the sake of interest, but there cannot be such issuance of non-bailable warrants by the Courts. Because it is an order for arrest. Though under Section 41 Cr.P.C. Court cannot order/direct arrest, it can direct execution of non-bailable warrant. In other words, arrest a person under non-bailable warrant. Therefore, the court must be very careful in issuing a non-bailable warrant. There is no surprise in the complainant having interest in the execution of warrant issued in a cheque bouncing case. Neither the complainant nor the accused are above the law. The warrant issued in a cheque bouncing case should not become a blank cheque in the hands of the police.
9. In the circumstances, the learned Judicial Magistrate, Vadipatti will recall the non-bailable warrant from the Inspector of Police, Vadipatti Police Station, Vadipatti, and in turn enforce the attendance/appearance of the accused before the Court strictly following the procedures laid down under the Code of Criminal Procedure.
10. With the above observations, this Criminal Original Petition is disposed of.
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