The court outlines guidelines for issuing warrants, emphasizing personal liberty and conditions for representation by counsel in criminal proceedings.

K.BABU, J.

-------------------------------------------

O.P.(Crl) No.31 of 2026 ---------------------------------------------

Dated this the 16^th day of January, 2026 JUDGMENT The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows:-

“i. To call for the records Annexure A5 proceedings dated 15.01.2026 in S.T.No.3943/2025 pending before the Judicial First Class Magistrate Court, Taliparamba against Petitioner/ Accused No.1 and set aside the same in the interest of justice.

ii. To issue such other writ, order, or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

2. In view of the nature of reliefs that I propose to grant notice to respondent No.2 is dispensed with. The learned Public Prosecutor takes notice for respondent No.1.

3. The petitioner is accused No.1 in S.T.No.3943/2025 pending before the Judicial First Class Magistrate Court, Taliparamba. She is alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act , 1881.

4. The grievance of the petitioner is that the learned Magistrate on 15.01.2026 issued Non-Bailable Warrant against the petitioner before issuing a bailable warrant. The contention of the learned counsel for the petitioner is that, having regard to the nature of the allegations, the learned Magistrate should not have ordered Non-Bailable Warrant at the first instance. The learned counsel for the petitioner relied on Inder Mohan Goswami and Another. v. State of Uttaranchal and Others (AIR 2008 SCC 251) to support his contention.

5. On 15.01.2026, the petitioner failed to appear before the Court though summons was served on her. It is submitted that the petitioner was incapacitated to appear before the Court as her husband was hospitalised.

6. In Inder Mohan Goswami (supra), the Apex Court observed thus:-

“In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.”

7. The learned counsel for the petitioner submitted that the presence of the petitioner during the course of proceeding is not at all required in view of the nature of the offence alleged against her. It is submitted that the petitioner is prepared to undertake that a counsel on her behalf will be present in the Court and that she has no objection in taking the evidence in her absence treating the presence of the counsel as her presence in compliance with Section 355 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’)/ Section 317 Cr.P.C.

8. In Bhanujan v. Jayabhanu [ 1993 (2) KLT 889 ], this Court while dealing with the scope of Section 205 Cr.P.C. held that the Magistrate has discretion to dispense with personal appearance of the accused in Court. It was further held that in appropriate cases the Court can, on conditions, allow the accused not to appear in person and permit him to be represented through a counsel. 9. In M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others [ AIR 2001 SC 3625 ], the Apex Court held that Section 205 (1) of Cr.P.C. permits the Magistrate to enable an accused to get permanent exemption from appearance on the following conditions:

(1) accused shall undertake that he wou