IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH ON THE 10^th OF MAY, 2022 MISC. CRIMINAL CASE No. 19543 of 2022 Between:-

SATYAPRAKASH @ RAHUL S/O PURSHOTTAM GUPTA , AGED ABOUT 29 YEARS, OCCUPATION: SERVICE R/O 282, TIWARI COLONY VILLAGE NADAN (MADHYA PRADESH)

.....PETITIONER (BY SHRI SAARANSH JAIN, ADVOCATE)

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION LASUDIYA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI MUKESH SHARMA, GOVT.ADVOCATE)

This application coming on for order this day, the court passed the following:

ORDER

The present petition has been filed under Section 482 of Cr.P.C.

for quashing the order dated 8.4.2022 passed by the Court of Special Judge (Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act), Indore in Special Case No.7/2021, whereby the application filed by the petitioner under Section 70(2) of Cr.P.C. for cancellation of non-bailable warrant issued against him was rejected.

The factual matrix of the case, in brief, is that respondent has filed a charge sheet against the petitioner before the Court of Special Judge (Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act), Indore for the offences punishable under Section 376(2)(N) of IPC and under Section 3(ii)(v) of SC, ST (Prevention of Atrocities) Act, wherein petitioner was given the benefit of bail vide order dated 8.1.2021 passed by the aforesaid Court in Crime No.1104/2020 registered at Police Station, AJK, Indore. Subsequently, petitioner appeared before the learned trial Court on each date prior to 5.1.2022. As learned counsel for the petitioner died due to Covid-19 and could not inform the petitioner about the date fixed for arguments before charge, therefore, petitioner could not appear on the said date and non- bailable warrant has been issued against him. Petitioner filed an application under Section 70(2) of Cr.P.C.for recalling the said order and for setting aside the non-bailable warrant issued against him, which was dismissed vide impugned order only on the ground that petitioner was not present at the time of deciding the application filed under Section 70(2) of Cr.P.C.

Learned counsel for the petitioner submits that petitioner's absence on 5.1.2022 before the learned trial Court was not intentional as he was not informed about the said date by his counsel late Shri Rajeev Kumar Sharma, who died due to Covid-19. He further submits that petitioner was appearing before the learned trial Court on each and every date and for entertaining the application under Section 70(2) of Cr.P.C.for setting aside the non-bailable warrant issued against him, presence of the petitioner was not required. Learned trial Court has committed error in rejecting the aforesaid application filed by the petitioner under Section 70(2) of Cr.P.C. learned counsel for the petitioner has placed reliance on order dated 21.3.2017 passed by co- ordinate Bench of this Court in M.Cr.C.No.4417/2017 as well as order dated 8.11.2021 passed by co-ordinate Bench of this Court in M.Cr.C.No.54035/2021.

Learned counsel for the respondent/State has opposed the application and submits that presence of the petitioner was required for considering the application filed under Section 70(2) of Cr.P.C.

Heard learned counsel for the parties and perused the record.

In M.Cr.C.No.4417/2017 vide order dated 21.3.2017, co-

ordinate Bench of this Court has observed as follows :- “It is relevant to mention here that the learned Court below has found no fault with the reasons given by the petitioner for his absence on 22.2.2017, but has however, held that for the purpose of exercising jurisdiction under Section 70(2) of the Cr.P.C., the physical presence of the petitioner was essential before the Court concerned. The learned trial Court has relied upon the judgment of the Hon'ble High Court of Madras reported in Kalachi Vs. State, 2006 Cr.L.J.

2053 (Mad.), in which it was held that the non-bailable warrant can be re