Madhya Pradesh High Court
Piyush Dixit vs The State Of Madhya Pradesh on 10 April, 2023
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 10 th OF APRIL, 2023
MISC. CRIMINAL CASE No. 60601 of 2022
BETWEEN:-
1. PIYUSH DIXIT S/O SHRI SUNIL SHARAN DIXIT,
AGED ABOUT 34 YEARS, OCCUPATION: SELF
EMPLOYED R/O OPPOSITE KHELGRAM SAGAR
ROAD, CIVIL LINES DISTRICT CHHATARPUR
(MADHYA PRADESH)
2. AKASH @ VARUN DIXIT S/O SHRI SUNIL SHARAN
DIXIT, AGED ABOUT 22 YEARS, OCCUPATION:
STUDENT R/O OPPOSITE KHELGRAM SAGAR
ROAD CIVIL LINES DISTRICT CHHATARPUR
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI BHAVIL PANDEY- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S. CIVIL
LINES DISTRICT CHHATARPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI VINOD TIWARI - PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of Cr.P.C. is directed against the order dated 11.11.2022 and 25.11.2022 passed in ST No. 99/2022 (State of MP Vs Piyush Dixit and another) under Sections 323, 294, 506, 427/34 of IPC passed by learned Sessions Judge, Chhatarpur whereby petitioners' application under Section 317 of Cr.P.C. has been dismissed and issuance of arrest warrant has 2 been ordered.
2. Petitioners are the accused in the ST No. 99/2022 for the alleged commission of offence under Sections 323, 294, 506 and 427/34 of IPC. The case was committed by the learned Magistrate for trial to the Court of Session as counter case is triable by Court of Session. Case was received in the Court of Sessions Judge on 13.09.2022 and was posted for 21.09.2022. Case was fixed for argument on charge for 13.10.2022, an application under Section 317 of Cr.P.C. was filed, same was allowed and case was fixed for 11.11.2022. On 11.11.2022, again an application under Section 317 of Cr.P.C. was filed but same was dismissed by the learned Sessions Judge and issuance of arrest warrant against the petitioners was ordered. An application under Section 70(2) of Cr.P.C. was filed for cancellation of warrant but same was dismissed as petitioners were not present in the Court. Hence, this petition has been filed praying for the recall of order dated 11.11.202 and 25.11.2022 passed by learned Sessions Judge.
3. Learned counsel for the petitioners has submitted that in cases like the present one where accused persons, who are on bail, have failed to appear before the trial Court on the date of hearing and an application under Section 317 of the Cr.P.C. was filed on the ground of the illness of their father who is admitted in Bombay Hospital, Indore for treatment. Same should have been allowed by the learned trial Court. There was no justification on the part of the learned trial Court to dismiss the application and issue the arrest warrant in a mechanical manner. Learned counsel placing reliance on the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others, (2007) 12 SCC 1, Abdul Kubur Vs. State through Deputy Superintendent of Police Alangulam order dated 14.07.2021 passed in Crl. RC (MD) No. 3 231/2021 and order dated 21.03.2017 passed in M.Cr.C. No. 4417/2017 by a Coordinate Bench of this Court, has submitted that impugned order being against the settled position of law be set aside and the non bailable warrant issued against the petitioners be recalled.
4. On the other hand, learned counsel for the State has opposed the prayer made by learned counsel for the petitioners.
5. I have heard learned counsel for the parties at length.
6. In the case on hand, it is apparent that the case was posted before the trial Court for argument on charge on 13.09.2022, 21.09.2022, 13.10.2022 and 11.11.2022. Petitioners did not turn up before the Court and filed application under Section 317 of Cr.P.C. Earlier on 2-3 occasions, applications were allowed but on 11.11.2022 same was dismissed mentioning that despite sufficient opportunities given by the Court, petitioners are not appearing before the Court. Therefore, their application for exemption cannot be allowed. As such, learned trial Court dismissed the exemption application and ordered for issuance of non bailable warrant against the petitioners. On a perusal of Annexure A-2, an application under Section 317 of Cr.P.C. filed before trial Court on 11.11.2022, it is revealed that petitioners' father is seriously ill and was admitted in Bombay Hospital, Indore and petitioners being son were at Indore to take care of their ailing father. Annexure A-3 are the medical documents showing that petitioners' father was admitted in Bombay Hospital, Indore for treatment.
7. On a perusal of the order sheets of trial Court, it is revealed that it was a new case and was fixed for framing of the charge. Petitioners were duly represented by advocate and advocate was regularly appearing before the trial 4 Court and had filed applications under Section 317 of Cr.P.C. mentioning inability of the petitioners to appear before the Court. Thus, having taken into consideration the circumstances under which petitioners were not able to appear before the trial Court, this Court finds that learned trial Court was not justified in issuing non bailable warrants at the very first instance against the petitioners/accused.
8. The Hon'ble Supreme Court in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others, (2007) 12 SCC 1 has cautioned against the alacrity with which trial Courts have issued non bailable warrant and has issued detailed guidelines to be followed by the trial Courts when issuing non bailable warrant.
9. This Court too vide order dated 13.02.2023 passed in M.Cr.C. No. 5932/2023 (Devendra Kumar Tiwari Vs. State of MP) has given directions that arrest warrant should not be issued against the petitioners/accused at the very first instance for securing their appearance. The Coordinate bench of this Court vide order dated 30.10.2017 passed in M.Cr.C. No. 18736/2017 has observed that:-
"In Criminal Revision No. 1516/2013 vide order dated 13.09.2013, a co-ordinate Bench of this Court has, in similar circumstances, allowed the revision and recalled the arrest warrant issued against the applicant and the applicant was directed to appear before the Court.
In M.Cr.C. No. 7610/2014 vide order dated 05.06.2014, a co- ordinate Bench of this Court has, in similar circumstances, allowed the application under Section 482 of Cr.P.C and directed to release the applicant on bail on furnishing a personal bond with a solvent surety in the like amount to the satisfaction of the Competent trial Court/Arresting Police Officer.
In M.Cr.C. No. 13195/2015, decided on 05.11.2015 bail was granted subject to deposit a sum of Rs.3,000/- towards his non- appearance in the trial Court within a week and the applicant 5 was directed to appear before the trial Court on 18.11.2015. On his appearance, he shall be released on bail on his furnishing a bail bond of Rs.20,000/- with one surety in the like amount to the satisfaction of the trial Court.
In another case, a co-ordinate Bench of this Court in M.Cr.C. No. 4417/2017 has observed that:-
"In cases like the present one where an accused person, who is on bail and has failed to appear before the trial Court on the date of hearing, the trial Court is well within its rights to issue a non-bailable warrant and the same cannot be faulted. However, it is advisable that the said power be not exercised in a routine or mechanical manner. In such a situation, it will be in the larger interest of justice to examine if the presence of the accused could be secured for the next date by way of a bailable warrant instead, at the first instance. The option to resort to either is within the discretion of the trial Court which it must exercise in the facts and circumstances of each case. If an application for cancellation of the non bailable warrant is filed before the Court issuing it, it cannot be dismissed only on the ground that the physical prsence of the accused is essential as the same is not necessary under Section 70 (2) Cr.P.C as already stated herein above.
Further petitioner was directed to appear before the learned court below and made it clear that effect of the present order would be the restoration of the bail bonds and sureties which have been canceled by the trial Court."
10. It is a case of two brothers who could not appear before the trial Court to mark their presence as their father was admitted at Bombay Hospital, Indore which is almost more than 500 km away from the trial Court, at Chhatarpur. Thus, it can be easily inferred that their absence is not intentional. The Coordinate Bench in M.Cr.C. No. 4417/2017 expressed its view as under:-
"With greatest respect to the said view of the High Court of Madras, this Court is unable to agree with the same. The adjective law is no more than a hand maiden to the substantive law that it seeks to enforce. When legislative intent expressed through the jus scriptum does not mandate the physical presence of the person sought to be produced by way of a non-bailable warrant, then it is not for the courts to add words thereby nullifying an express omission in the statute, Section 70 (2) of the Cr.P.C vests the Court with the 6 power to recall the warrant of arrest and the same can also be exercised suo moto and must not be construed in a manner that would result in hardship to the person so sought to be produced by way of a non-bailable warrant."
11. In this case, it cannot be over looked that petitioners were duly represented by the counsel. There was no legal impediment in framing charge against the petitioners/accused through their advocate. Their appearance was not necessary for framing of charge. Thus, the order dismissing the application under Section 317 of Cr.P.C. and issuing arrest warrant and further rejection of application of Section 70(2) of Cr.P.C. are not justified. Thus, this Court is of the view that non bailable warrants issued against the petitioners/accused are required to be recalled. Consequently impugned ordes of the trial Court are liable to be set aside.
12. In view of the above, this petition is allowed. The impugned orders dated 11.11.2022 and 25.11.2022 in ST No. 99/2022 by trial Court are set aside and the non bailable warrants issued against the petitioners/accused in pursuant to the order dated 11.11.2022 are recalled. Petitioners are directed to appear before the learned Court below on or before 11.05.2023. The effect of the present order would be the restoration of the bail bonds and sureties which have been cancelled by the learned trial Court.
13. This petition is disposed of accordingly.
(DINESH KUMAR PALIWAL) JUDGE L.R. signed by Digitally LALIT SINGH RANA Date: 2023.04.13 13:27:46 +05'30'