For offences under Section 138 of the Negotiable Instruments Act, only bailable warrants should be issued for failure to appear, and the accused's presence is not required to recall such warrants.

Petitioner is the accused in S.T.No.1833 of 2023 pending on the files of the Judicial First Class Magistrate Court- III, Ernakulam. The summons served on the petitioner on 14.10.2024, required his presence before the court below on 30.10.2024. The petitioner's failure to appear on that date or to engage a counsel to appear on his behalf, which according to the petitioner was for reasons beyond his control, resulted in the court below issuing non-bailable warrant. Thereafter, petitioner engaged counsel and submitted a petition requesting to recall the non-bailable warrant without insisting on his presence. The court below dismissed the petition with cost as per Annexure 1 order. Hence, this Crl.M.C.

2. Learned counsel for the petitioner contended that the offence alleged being under Section 138 of the Negotiable Instruments Act, following the dictum in Satender Kumar Antil v. Central Bureau of Investigation and Another

[ (2021) 10 SCC 773 ], only bailable warrant could have been issued for petitioner's failure to appear, despite service of summons. In support of the contention, reliance is placed on the decision in Rahul R v. State of Kerala and Others [2024

(1) KLT 772]. It is then contended that Section 70(2) of Cr.P .C (Section 72(2) of BNSS) does not insist upon the accused's presence while considering the petition to recall the warrant. To buttress the contention, decision of the Karnataka High Court in Haridas Salian v. Rama R Shetty [2018 (3) KCCR

2449] is pressed into service.

3. I heard the learned Public Prosecutor also. Issuance of notice to the 2^nd respondent is dispensed with, since the order I propose to pass will cause no prejudice to him.

4. The Apex Court in Satender Kumar Antil (supra) has laid down the following principles in the matter of securing presence of the accused falling under different categories mentioned therein. Category A being contextually relevant, is

reproduced below;

“After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including permitting appearance through lawyer. (b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.

(c) NBW on failure to appear despite issuance of bailable warrant.

(d) NBW may be cancelled or converted into a bailable warrant/ summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. (e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.”

5. Following the above principle and the offence under Section 138 being bailable, learned Magistrate could have issued only bailable warrant on the petitioner's failure to appear on summons. As such, petitioner was well within his rights to seek recall of the non-bailable warrant and the learned Magistrate need not have taken umbrage for making such request. The majesty of law is no way insulted by an accused resorting to a lawful remedy. On the other hand, dispassionate consideration and grant of appropriate relief will only enhance the magnificence of law.

6. The legal position that, for consideration of an application under Section 70(2) of Cr.P .C, presence of the accused is not required, is no longer res integra . The said position is reiterated in Haridas Salian (supra) also. As observed by the Apex Court in Sharif Ahmed and Others v. State of Uttar Pradesh and Others ( AIR 2024 SC 2420 ), even in cases where the Code is silent, courts must act on the principle that every procedure which is just and fair is understood as permissible, till it is shown to be expressly or impliedly prohibited by law. Be that as it may, petitioner having failed to appear on summons or to engage a counsel to represent him on the