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2002 DIGILAW 864 (MAD)

Siluvai Pragasam v. State

2002-08-21

D.MURUGESAN

body2002
Judgment :- This petition has been filed for grant of Anticipatory Bail. 2. The petitioner has been charged for the alleged offence under Sections 120(b), 467, 468, 471, 420 read with 511 of I.P.C. According to the complaint, two persons by names Panchalingam and Rajkumar opened a bank account in a nationalised bank and presented a forged demand draft, drawn on Canadian Bank. The complaint was lodged by the Manager of the nationalised bank. Panchalingam is a Srilankan National. In order to help him to open an account in the bank, the petitioner is said to have introduced the other accused Rajkumar to Panchalingam. 3. Learned counsel for the petitioner has submitted that though the case was registered against the petitioner also, he was not informed of the case and he was not aware of such complaint registered against him. However, he was shown by the Investigating Officer as an absconding accused. When the charge sheet was also filed, the petitioner was shown as absconding accused and therefore, learned X Metropolitan Magistrate, Egmore, Chennai directed the issue of Non Bailable Warrant, exercising power under Section 204(1)(b) of Criminal Procedure Code. Learned counsel for the petitioner submitted that the said section empowers the learned Magistrates to issue summons so. Without exercising such power, learned Magistrate has straight away issued Non Bailable Warrant. Hence, this petition for the grant of Anticipatory Bail. 4. Mr.K.Abudukumar Rajarathinam, learned Government Advocate, on the other hand has submitted that when N.B.W., is pending, the petitioner ought to have surrendered before the learned Magistrate and ought to have filed a petition for recall of warrant. Without doing so, the petitioner has rushed to this Court with the present petition. Hence, the request for Anticipatory Bail is liable to be rejected. 5. When the matter was heard, two learned Senior Counsel viz., Mr.K.Asokan and Mr.M.Ravindran espousing the general cause of the accused, who were similarly placed, represented that in most of the cases, even without taking effective step to locate the accused, the Investigating officers show the accused as absconding and on their report to the Court, N.B.W is issued by the Magistrate even without reference to issue of summons. By the said practice adopted uniformly by the Magistrates the accused are put to hardship and hence, it would be appropriate for this Court to issue directions to the Magistrates to explore the possibility of securing the accused by issuing summons and only in the event of failure, to issue N.B.W. 6. In view of the above said submissions, touching upon day today grievance of the accused and the hardship caused, it would be appropriate for this Court to issue certain guidelines to all the learned Magistrates in this regard. 7. The procedure to be adopted in issuing Non Bailable Warrant has been dealt with under Section 204(1)(a) and (b) of Criminal Procedure Code, which runs as follows:- "“204. ISSUE OF PROCESS :- (1) If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction". 8. As per Section 204(1)(a) of Cr.P.C., the Magistrates while taking cognizance of an offence and of the opinion that there are sufficient grounds for proceedings, issue summons in case of summons case for attendance of the accused. As per 204(1)(b) of Cr.P.C., the Magistrates are empowered to issue warrant while taking cognizance of an offence in warrant cases. Further, the said section enables the Magistrates while they think fit that summons also could be issued for causing the accused to be brought or to appear before the Magistrates. The intention of legislature appears to be that it cannot be a hard and fast rule that in all warrant cases, while the accused are shown absconding, only warrants should be issued. In appropriate cases, the Magistrates are also empowered to first issue summons for the appearance of the accused and in the event the presence of the accused could not be secured, to issue N.B.W. The above procedure seems to be a healthy practice in the interest of the accused who are shown as absconding accused. In appropriate cases, the Magistrates are also empowered to first issue summons for the appearance of the accused and in the event the presence of the accused could not be secured, to issue N.B.W. The above procedure seems to be a healthy practice in the interest of the accused who are shown as absconding accused. However, such exercise of discretion either issue of summons or warrant depends upon the facts and circumstances of each case and shall solely vest with the concerned Magistrates. It would be only appropriate for the Magistrates to explore the possibility of issuing summons at the first stage, depending upon the facts and circumstances of the each case before warrant is issued. 9. In the present case, the petitioner is facing a Non Bailable Warrant as he was shown as absconding accused. Hence, I do not find any justification to entertain the application for the grant of Anticipatory Bail petition. Hence, this petition is dismissed. However, there will be a direction to the petitioner to surrender before the X Metropolitan Magistrate, Egmore, Chennai and file an application to recall the non-bailable warrant. In the event of such request is being made, the learned X Metropolitan Magistrate, Egmore, Chennai shall consider the same and pass appropriate orders on merits on the same day.