Jammu & Kashmir High Court - Srinagar Bench
Vishvendra Singh vs Union Of India & Anr on 12 August, 2022
S. No. 89
Supplementary List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No. 323/2022
CrlM No. 960/2022
Vishvendra Singh ... Appellant(s)
Through: Mr Vikas Malik, Advocate.
Vs.
Union of India & Anr. ...Respondent(s)
Through: Mr T.M. Shamsi, ASGI for R-1.
Ms Asma Rashid, Advocate for R-2.
CORAM: HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE
ORDER
12.08.2022
1. Petitioner Vishvendra Singh facing trial in a case titled WTC Faridabad Infrastructure Development Pvt. Ltd. vs. Vishvendra Singh in a complaint for the commission of offences punishable under Sections 499/500, 120-B IPC aggrieved of an Order dated 03.08.2022 passed by learned Chief Judicial Magistrate Srinagar whereby non-bailable warrant had been issued against him to be executed by Delhi Police Commissioner has impugned the order through this petition.
2. It has been pleaded and urged by the learned counsel for the Petitioner that the Petitioner is resident of Delhi and has been facing numerous cases filed by the Complainant in Kashmir and he had moved transfer petition before the Hon'ble Apex Court. The Hon'ble Apex Court in Transfer Petition (Criminal) No. 49/2022 had ordered learned Chief Judicial Magistrate Srinagar vide Order dated 13.05.2022 to grant exemption from personal appearance to the Petitioner on appropriate conditions and shall insist on his personal appearance only when the presence of the Petitioner is absolutely mandatory
3. Learned Counsel for the Petitioner submits that unmindful of the directions of the Hon'ble Apex Court, the learned Trial Magistrate vide impugned Order dated 03.08.2022 issued non- bailable warrant (NBW) against the Petitioner/Accused for the reason that the witness of the Complainant who was present could not be examined due to non-appearance of the Petitioner/Accused.
4. Learned counsel further submits that he was present in the Court when this Order was passed and his presence was also not been recorded by the learned Trial Magistrate and presence of the Petitioner/Accused for examination of the witness was not that necessary which could have permitted the learned Trial Magistrate to pass an order for issuance of non-bailable warrant. He submits that he was ready to cross-examine the witness, if any, to be examined by the Complainant on that date and the presence of the Accused was not necessary for examination of the complainant's witness.
5. Mr T.M. Shamsi, learned ASGI, appeared on behalf of Respondent No. 1 whereas Ms. Asma Rashid Advocate, appeared on behalf of Respondent No. 2 and both have opposed the plea of the Petitioner for recalling of the non-bailable warrant issued by the learned Trial Magistrate. They have submitted that the Petitioner who is an accused of having committed offences has been playing hide and seek from appearance before the Court to defeat the course of justice and that the plea raised by the Petitioner be rejected outrightly.
6. On a consensus between learned counsel for the parties, the case is taken up for final consideration without insisting upon further pleadings.
7. Heard and considered.
8. The Petitioner having been unsuccessful in the transfer petition, seeking transfer of the complaint case No. 775/2021, before the Hon'ble Apex Court, has been issued non-bailable warrant for his absence from the proceedings. Perusal of the Order passed by the Hon'ble Apex Court reveals that it had been ordered that the learned Trial Magistrate shall grant exemption to the Petitioner/Accused from personal appearance on appropriate conditions and shall insist upon personal appearance of the Petitioner/Accused only when his presence is absolutely mandatory.
9. The non-bailable warrant sought to be withdrawn, issued by learned Chief Judicial Magistrate on 03.08.2022, has been perhaps issued without bringing to his notice the Order passed by the Hon'ble Apex Court. Since the presence of the Accused during trial in a complaint case is required only for cross- examination of the witnesses and in absence of the Accused, the same can be done by his counsel. In my considered view, it was not absolutely mandatory for the learned Trial Magistrate to procure the attendance of the Accused for cross-examination of the witnesses.
10. Learned counsel for the Petitioner/Accused also submits that the defence had not been provided any copy of the statement made by the witness of the Complainant so as to facilitate him to cross-examine the witness. Non-bailable warrant has been issued by the learned Trial Magistrate, unmindful of the Order passed by the Hon'ble Apex Court so as to not insist on personal appearance of the Accused until absolutely necessary. The Order impugned is, thus, not sustainable and non-bailable warrant issued against the Petitioner/Accused is required to be recalled.
11. In view of the direction of the Hon'ble Apex Court, for the aforestated reasons, the petition is allowed and the impugned Order to the extent of issuing non-bailable warrant against the Accused/Petitioner is quashed. The Petitioner, however, shall appear or seek exemption from personal appearance before the Trial Court on next date of hearing which has been fixed on 01.09.2022 and shall also make arrangement for cross- examination of the witness, if any, examined on that date by the complainant. Copy of this Order shall be expeditiously forwarded to the Trial Court for information and compliance.
12. The Petition along with the pending application(s), if any, is disposed of.
(M.A. CHOWDHARY) JUDGE SRINAGAR 12.08.2022 Hilal Ahmad