The court ruled that personal presence of the accused is not required for the cancellation of an arrest warrant under section 70(2) of the Cr.P.C., and applications should be considered on their merits.

ORDER :

1. Heard on the question of admission. This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure has been filed being aggrieved by the order dated 27-9-2023 (Annexure P/1) passed by the learned First Additional Sessions Judge, District Dewas (M.P.) in S. T. No. 425/2015 by which the application filed by the applicant under section 70(2) of the Cr.P.C. has been rejected.

2. The brief facts of the case are that the respondent had registered an FIR at Crime No. 80/2015 for the offences punishable under sections 419, 420, 468, 471 and 120 of the Indian Penal Code and section 3/4 of the Madhya Pradesh Recognized Examinations Act, 1984 against the present applicant and other co-accused persons. The charge-sheet has been filed and the trial is pending before the learned Sessions Judge, Dewas.

3. On 15-9-2023, the matter was fixed for appearance of the present applicant but due to illness, he could not personally remain present before the Court and he appeared through his counsel and filed an application under section 317 of the Cr.P.C. for condonation of his absence. The said application was rejected by the trial Court and an arrest warrant was issued against the applicant. On the next date of hearing i.e. 27-9-2023 due to personal reasons, the applicant did not appear before the Court, however, the counsel appeared and filed an application under section 70(2) of the Cr.P.C. and prayed that the arrest warrant issued by the Court against the applicant may kindly be cancelled and sometime may be allowed to secure his presence.

4. Learned trial Court passed the impugned order dated 27-9-2023 by which the application filed by the applicant has been rejected without considering or without assigning any reasons hence, the present revision. The application was rejected on the ground that the applicant is not personally present, therefore, cancellation of arrest warrant is against the settled proposition of law. The learned trial Court did not consider the other personal grounds raised in the application. There is no provision in Cr.P.C. that at the time of consideration of the application under section 70(2) of the Cr.P.C. the accused is mandatorily required to be present before the Court.

5. Learned counsel for the applicant submitted that he was ready to appear before the trial Court after cancellation of warrant since there was reasonable apprehension in the mind of the applicant that he might be put behind the bars if he appeared before cancellation of warrant, the learned trial Court ought to have considered the application on merits.

6. On the other hand, learned counsel for the respondent/State submitted that this is a normal practice that whenever arrest warrant is issued and on filing application under section 70(2) of the Cr.P.C. the accused person is required to be present before the Court. In such a situation, the learned trial Court has not committed any error so as to interfere with the order.

7. Heard learned counsel for the parties.

8. In our considered opinion, there is no law that the accused shall personally remain present for cancellation of arrest warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned trial Court without insisting for the appearance of the applicant/accused.

9. In view of the aforesaid, the revision is allowed and disposed of with the following directions:

(1) The impugned order dated 27-9-2023 is hereby set aside and the application filed by the applicant under section 70(2) of the Cr.P.C. is allowed.

(2) The non-bailable warrant issued against the applicant stands cancelled. (3) Applicant shall appear before the concerned trial Court on the next date of hearing and on such other dates as may be fixed by that Court.

10. Let a copy of this order be sent to the learned First Additional Sessions Judge, Dewas for information and necessary compliance.