Law does not permit coercive actions against a party in absence of a valid warrant issued by a Magistrate.

JUDGMENT

The de facto complainant in CC No.776/2016 on the files of Judicial First Class Magistrate Court I, Karunagappally, has filed this petition under Article 227 of the Constitution of India, seeking a direction to the 1st respondent, who is the SHO of Police, Ochira Police Station, Kollam, or any other police officers not to arrest her or her parents. Another prayer is to issue a direction to the 1st respondent to execute the Non Bailable Warrant ordered against the 2nd accused in the said case by the learned Magistrate.

2. According to the petitioner, the Trial Court unnecessarily issued a warrant against her though her presence was not required at the relevant time during the course of proceedings of trial in the aforesaid case. It is further stated that the Trial Court did not pass necessary orders to ensure the presence of the 2nd accused for trial.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

4. The daily proceedings in CC No.776/2016 on the files of the Judicial First Class Magistrate Court I, Karunagappally, has been extracted by the petitioner in this Original Petition. On going through the above details, it is seen that the Trial Court had issued bailable warrant to CW1 on

23.03.2022 and repeated the same on 12.07.2022, 09.01.2023 and on 07.03.2023. However, after 19.04.2023, when CW1 had filed vakalath, the said order to issue the warrant to the above witness, was not repeated. On 19.04.2023, the filing of vakalath by CW1 has been recorded by the learned Magistrate. On 11.07.2023, CW1 has filed an application for condoning her absence and the case was posted to 13.09.2023. On 13.09.2023, the learned Magistrate has observed that CW1 shall appear, and posted the case to 20.10.2023. On 20.10.2023 also, the representation of CW1 through her counsel has been recorded and the case was posted to 22.11.2023. Thus, it is seen that the bailable warrant issued to CW1 was not in force, after she appeared before the learned Magistrate through her counsel. Therefore, the 1st respondent and other police officers are not expected to take coercive steps against the petitioner in the absence of an order in force in that regard from the learned Magistrate.

5. As regards the contention about the failure of the Trial Court to ensure the presence of the 2nd accused, it is seen that warrant was ordered to the 2nd accused on 13.04.2022. Thereafter, the Trial Court has proceeded with the Trial after the surrender of accused Nos.1,3 and 4 on 23.04.2022. It is not possible to say that there is any procedural irregularity on the part of the Magistrate in the aforesaid proceedings. The Trial Court is empowered to proceed with the case with the available accused. The question of splitting up the case against the accused whose presence could not be procured, and assigning a new number to the case against him, could be considered at the time of pronouncing the judgment in the case against the available accused. Thereafter, the Trial Court has to take other coercive steps of proclamation and attachment and decide whether the case against the accused, whose presence could not be procured, is liable to be transferred to Long Pending Register. In that view of the matter, it is not possible to issue a direction to the 1st respondent to execute the warrant against the 2nd accused.

In view of the discussions aforesaid, I deem it appropriate to close this petition, with the observation that the 1st respondent or any other police officers are not expected to resort to any coercive proceedings against the petitioner herein, in the absence of a warrant in force, issued by the learned Magistrate.