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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Market Babu @ Ramesh Babu - Appellant
Versus
State By: Inspector of Police - Respondent
Crl.R.C.No.136 of 2018
Decided on : 22-01-2019
Criminal Procedure Code - Section 397 r/w 401 – Indian Penal Code - Sections 294(b), 384, 447, 506 - Trial Court - Recall the Non-boilable warrant - Against the order - Revision petitioner is a journalist in an English Magazine and made complaint against irregularities of defector-complainant who is working as a Manager in Temple controlled by Endowment - Enraged by same defector-complainant preferred a false complaint against revision petitioner with respondent police and a case was registered in Police Station Crime under Sections 294(b), 384, 447, 506(i) of IPC against revision petitioner – Held, An accused who was never arrested during course of investigation against whom a NBW has been issued by Court after taking cognizance of offences - In second category of cases where accused was arrested in course of investigation and after taking cognizance of the final report, if trial Court issued NBW if accused approaches Court for recalling the warrant under Section 70(2) of learned trial Court on considering gravity of offences role played by accused his roots in the society, likelihood of ascendance and need of custodial interrogation by the police are the factors to be taken into account while considering a petition for recall of warrant – Undoubtedly case on hand falls within the second category – Therefore when revision petitioner approached learned Magistrate under Section 70(2) of learned Magistrate ought to have considered the above relevant factors - But in this case a perusal of order of learned Judicial Magistrate would go to show that he has not all considered the above relevant factors - In view of the above, I hold that the order of the learned Judicial Magistrate is liable to be set aside and consequently, all consequential proceedings including execution of bond etc., shall also stand set aside - Non-Boilable Warrant issued by Court is nothing but a process under Chapter-VI of code of to secure presence of accused in Court said warrant shall be in force until it is either executed or same is cancelled by Magistrate who has issued the NBW under section 70 – petition allowed
JUDGMENT :
Prayer: Criminal Revision filed under Section 397 r/w 401 of Cr.P.C., against the order dated 18.12.2017 passed by the learned Judicial Magistrate No.1, Chengalpattu, dismissing the petition filed under Section 70(2) Cr.P.C. in Cr.M.P.No.6322 of 2017 to recall the Non-bailable Warrant issued against the petitioner in the above C.C.No.209 of 2017 on his file.
This criminal revision is preferred by the petitioner/accused against the order passed by the learned Judicial Magistrate No.1, Chengalpattu dated 18.12.2017 wherein the learned Judicial Magistrate dismissed the application filed in Cr.M.P.No.6322 of 2017 in C.C.No.209 of 2017 under section 70(2) of Cr.P.C. to recall the Non-bailable warrant.
2. Brief case of the revision petitioner:
The revision petitioner is a journalist in an English Magazine and made complaint against the irregularities of the defacto-complainant who is working as a Manager in Thiruporur Murugan Temple controlled by Endowment. Enraged by the same, the defacto-complainant preferred a false complaint on 13.7.2015 against the revision petitioner with the respondent police and a case was registered in E-6 Thiruporur Police Station Crime No.413 of 2015 under Sections 294(b), 384, 447, 506(i) of IPC against the revision petitioner.
3. After completion of investigation, the respondent police filed the absconding charge sheet against the revision petitioner under Sections 294(b), 384, 447, 506(i) of IPC on 15.6.2016 before the Learned Judicial Magistrate No.1, Chengalpattu and the same was taken on file as C.C.No.209 of 2017 and the learned trial Court issued Non-Bailable warrant against the petitioner.
4. The petitioner preferred a petition to recall the Non-Bailable warrant before the Learned Judicial Magistrate No.1, Chengalpattu in C.M.P.No.6322 of 2017 and the same was dismissed.
5. Aggrieved over the same, the revision petitioner challenged the order of NBW by filing this revision to set aside the order passed in Cr.M.P.No.6322 of 2017 in C.C.No.209 of 2017 and recall the NBW issued against the petitioner in the above C.C.No.209 of 2017 without surrender or appearance before the learned Judicial Magistrate No.1, Chengalpattu.
6. The learned counsel for the revision petitioner submits that a false complaint on 13.7.2015 was preferred against him and thereafter an FIR was registered in Crime No.413 of 2015 dated 15.7.2015 because of the fact that he questioned the act of the defacto-complainant, who is working as Manager of the temple.
7. The learned counsel for the petitioner submits that the respondent police filed absconding charge sheet against the petitioner before the learned judicial Magistrate No.I, Chengalpattu and the same was taken on file as C.C.No. 209 of 2007 and the issuance of Non-Bailable warrant without issuing the summon for appearance is illegal on the face of the record.
8. The learned counsel for the petitioner submits that he is not an absconder in the above said case and he is very well residing in the above address which is his native.
9. The learned counsel for the petitioner submits that also the only reason offered by the learned Judicial Magistrate is that the petitioner should appear before the Court or he should obtain anticipatory bail before the High Court and recall the Non Bailable Warrant against him is miscarriage of justice.
10. The learned counsel for the respondent opposed the criminal revision petition as not maintainable and supported the order passed by the learned Judicial Magistrate.
11. I heard Mr.B.Janakiram, learned counsel for the petitioner and Mr.R.Suriya Prakash, learned Government Advocate (Criminal Side) for the respondent and perused the entire materials available on record.
12. Before going in to the legal issues involved in this matter, the factual background of the case is that the revision petitioner raised the issue of irregularity in administering the temple against the defacto-complainant and outraged by the same, a false FIR has been registered.
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