The presence of an accused is not mandatory for recalling a Non-Bailable Warrant, as representation by counsel suffices under Section 70(2) of the Cr.P.C.

ORDER: 

The present Criminal Revision Case is filed against the order dated 12.11.2024 in Crl.M.P.No.4092 of 2024 in S.C.No.21 of 2019, on the file of the learned Session Judge, Hyderabad.

2. Heard learned counsel for the petitioner/A4 and the learned Assistant Public Prosecutor appearing on behalf of respondent-State. Perused the entire material on record.

3. Learned counsel for the petitioner submitted that in S.C.No.21 of 2019, the petitioner/accused No.4 had engaged a counsel and when the matter came up for hearing on 12.11.2024, the trial Court has observed that the accused was called absent and there was no representation on behalf of the accused and therefore, the Court had issued an NBW (Non-Bailable Warrant) against the accused and posted the matter for hearing therefore, an NBW was issued against the accused. The contention of the petitioner is that he was suffering from ill-health and he informed his counsel and requested him to file an application seeking dispense with his personal appearance, inadvertently the counsel on record arrived before the trial Court just after the issuance of warrant against the petitioner. The counsel on record immediately filed an application under section 70(2) of Cr.P.C seeking recall of non-bailable warrant issued against the petitioner, the trial Court without giving an opportunity to the counsel on record and without even perusing the order dated 20.12.2023 in Crl.P.No.12140 of 2023 passed by this Court, had mechanically dismissed the application, wherein this Court had categorically held that

“presence of petitioner/accused need not be insisted during the proceeding for recall of NBW”, which is not mandatory even according to the statute, accused can be represented by his counsel, warrant issued against the accused can be recalled in the absence of accused. He further submitted that the petitioner is a resident of Andhra Pradesh State and he is appearing before the trial Court regularly and furnished a Photostat copy of E-Courts proceeding in support of his contention.

Hence, seeks to allow the Revision.

4. On the other hand, the learned Assistant Public Prosecutor opposing the same submits that in the absence of petitioner the trial Court has rightly and appropriately dismissed the petition filed under Section 70(2) of Cr.P.C.

Hence, seeks to dismiss the Revision.

5. Having regard to the rival contentions and the material on record, this Court finds that under Section 70 of the Code of Criminal Procedure (‘Cr.P.C.’ in short), the Court can issue a warrant in writing and under sub-section (2) thereof, every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. The petitioner claims to have filed the application for recall of the NBW and it is his case that the accused can be represented by his counsel and he need not be present physically during the proceedings when the application for recall of NBW is being considered. Learned counsel for the petitioner relied upon a decision of the Madurai Bench of Madras High Court in the case of R. Sundar Vs. The Sub-Inspector of Police, Lalgudi Police Station, Lalgudi, Lalgudi Taluk, Trichy District, Crl.R.C.(MD) No.1105 of 2023 and Crl.M.P.(MD) No.14125 of 2023 dt.26.10.2023 wherein the Hon’ble High Court has observed that the presence of the accused need not be insisted upon during the proceedings for recall of NBW.

6. This Court has also perused the medical certificate submitted by the petitioner for his not being able to be present before the trial Court on the date fixed for his appearance and hearing.

7. In these circumstances, this matter is remanded back to the trial Court with a direction to the revision petitioner to file an appropriate application afresh seeking recall of NBW issued against him within a period of two weeks from the date of receipt of a copy of this order and upon such filing petition by the revision petitioner, the learned trial Court shall consider the same and pass