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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. DEVADASS, J.
Dr. Janarthanan - Petitioner
Versus
State rep. by The Inspector of Police, City Crime Branch, Madurai - Respondent
Crl. R.C. (MD) No. 617 of 2016
Decided On : 01-09-2016
NBW - Criminal Procedure - Sections 328, 201, 409, 420, 468, 120-B, 109 I.P.C., and Sections 33(eea) and 27 of Drugs and Cosmetics Act - The judgment discusses the issuance of NBW against the petitioner, the legality and propriety of the NBW, and the exercise of judicial discretion by the learned Magistrate. It also highlights the principles of individual liberty, the interest of the State, and the need to secure the attendance of the accused in court.
Fact of the Case:
The petitioner sought to recall the NBW issued against him without his physical presence before the learned Magistrate. The Magistrate refused to recall the NBW, leading the petitioner to approach the revisional jurisdiction of the Court.
Finding of the Court:
The Court found that the issuance of NBW was not in accordance with the law and that the exercise of judicial discretion by the learned Magistrate in issuing NBW to the petitioner was not proper. The Court ordered the petitioner to surrender before the Magistrate, upon which the NBW would be recalled.
Issues: The issues revolved around the legality and propriety of the NBW issued against the petitioner, the exercise of judicial discretion by the learned Magistrate, and the need to secure the attendance of the accused in court.
Ratio Decidendi: The Court emphasized the principles of individual liberty, the interest of the State, and the need to secure the attendance of the accused in court. It also highlighted the guidance provided by the Hon'ble Supreme Court in the INDER MOHAN GOSWAMI case regarding the issuance of summons and NBW.
Final Decision: The Court ordered the petitioner to surrender before the learned Magistrate, upon which the NBW would be recalled. The petitioner was also required to execute a bond and attend all hearing dates unless his absence was condoned.
1. This revision is at the instance of A6 in P.R.C. No. 2 of 2016, as against dismissal of his petition to recall the N.B.W. filed in Cr. M.P. No. 1158 of 2016 by the learned Judicial Magistrate No.I, Madurai.
2. Based on the complaint of A5/P.Saravanan a Madurai Doctor, the City Crime Branch Unit of Madurai City Police registered a case in Crime No.55 of 2015 under Sections 328, 201, 409, 420, 468, 120-B, 109 I.P.C., and under Sections 33(eea) and 27 of Drugs and Cosmetics Act.
3. The Investigation Officer went on collection of materials. Completing his investigation, he filed the Final Report under Section 173(2) Cr.P.C. before the learned Judicial Magistrate No.I, Madurai as against 11 persons including the petitioner. In this case, the petitioner has been arrayed as A6.
4. On 15.10.2015, the learned Judicial Magistrate No.I, Madurai took cognizance on the Police Report in C.C. No. 84 of 2015. A1 to A4 were shown as on bail. The learned Magistrate ordered summons to them. Subsequently, on 04.02.2016, on noting down that it involves certain offence exclusively triable by a Court of Sessions, the learned Magistrate converted the Calender Case as a Preliminary Register Case in P.R.C. No. 2 of 2016. In the Final Report, since the Investigation Officer has shown A5 to A11 as absconding accused the learned Magistrate ordered issuing of NBWs against them and adjourned the case to 18.02.2016.
5. In the circumstances, apprehending arrest the petitioner has filed Crl. O.P. (MD) No. 2433 of 2016 in this Court under Section 438 Cr.P.C. seeking anticipatory bail. Similarly, some co-accused have also sought for anticipatory bail.
6. In Crl. O.P. (MD) No. 2433 of 2016 (supra), on 22.03.2016, by a common order, a learned Judge of this Court granted anticipatory bail to certain co-accused, however, declined anticipatory bail to the petitioner. On 31.03.2016, the accused, who were granted anticipatory bail have surrendered themselves before the learned Magistrate No.I, Madurai, they have produced the said common order copy and went on bail.
7. Inspired by the decision of this Court in N.K.K.P. Raja V. State [2009 (4) MLJ Crl. 1190] advocating issuance of summons first, thereafter only NBW has to be issued, the learned Magistrate issued summons to the petitioner for the hearing 21.04.2016. On 30.03.2016 summons was entrusted to the police for service upon the petitioner. It is stated that it was unserved. There is no indication as to the nature of service - whether it was attempted to be served, whether it was refused.
8. Subsequently, on 02.04.2016, the learned Magistrate noted down the dismissal of the anticipatory bail petition of the petitioner by this Court and the observations made against him by this Court in the common order dated 22.03.2016 and coming to the view that the petitioner is involved in an heinous crime revised its earlier view based on N.K.K.P. RAJA (supra) and now ordered issuing of NBW as against the petitioner.
9. Already, the petitioner is under fear psychosis. Naturally now it went high. In the circumstances, as against the dismissal of his first anticipatory bail petition in Crl. O.P. (MD) No. 2433 of 2016 the petitioner has filed S.L.P. (Cr.) No. 2452 of 2016, in the Honourable Supreme Court of India. Subsequently, on 18.07.2016, he had withdrawn the S.L.P. with liberty to approach the High Court for appropriate redress in accordance with law.
10. Petitioner filed Cr.M.P.No.1158 of 2016 before the learned Judicial Magistrate No.I, Madurai under Section 70(2) Cr.P.C., to recall the NBW issued against him. Drawing inspiration from N.K.P.P. RAJA Case (supra) and from Sundar Vs. State [2016 1 L.W. (Crl.) 506], the petitioner sought for recalling of the NBW without his physical (actual) presence before the learned Magistrate.
11.The learned Magistrate focused his attention on the nature of the case and the dismissal of his first anticipatory bail petition by this Court and the pendency of his SLP before the Hon'ble Supr
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