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2007 DIGILAW 1509 (RAJ)

Arvindra Nath Sharma v. State of Rajasthan

2007-08-09

DALIP SINGH

body2007
JUDGMENT 1. - Learned counsel for the petitioner has drawn the attention of the court to the order dated 25.7.2007 passed by the learned Magistrate. The same reads as follows:"25.7.2007 HINDI MATTER 275194 2. After the above order was dictated on 25.7.2007 the counsel for the accused petitioner appeared and submitted that the accused is on bail and is unwell and unable to attend the court accordingly a request for the date be given after about two months. The learned Magistrate after considering the said application dismissed the same and the operative portion of the order dated 25.7.2007.which came to be recorded after giving the reason for dismissing the application reads as follows: HINDI MATTER 275194 3. The petitioner thereafter moved an application under Section 70 (2) Criminal Procedure Code for converting the order for issuance of arrest warrant for summoning the accused to one by bailable warrant which was passed on 25.7.2007. The said application was dis missed by the learned Magistrate vide his order of the same date on the ground that the same shall amount to review of the order passed on 25.7.2007. Learned counsel for the petitioner has submitted that the petitioner is willing to appear before the learned court and it was for this purpose that the counsel had appeared on 25.7.2007 even though the order had been issued for summoning accused by bailable warrant of Rs. 10,000/- treating the fact that the bailable warrant issued on 23.4.2007 had not been served and after the appearance had been put by the counsel on behalf of the accused petitioner on 25.7.2007 there is no occasion for issuance of the arrest warrant against the accused petitioner. 4. It is submitted that the petitioner is willing to appear before the learned Magistrate and that though the case is fixed in this behalf today. Therefore a subsequent date may be fixed in this behalf as in case the petitioner appears he is liable to be taken in custody in view of the order dated 25.7.2007 directing his presence on the basis of arrest warrant. 5. I have perused the order sheet dated 25.7.2007. It does not appear that the learned Magistrate had considered the facts whether the bailable warrant issued on 23.4.2007 had been returned after due service or returned unserved as there is no report to that effect. 5. I have perused the order sheet dated 25.7.2007. It does not appear that the learned Magistrate had considered the facts whether the bailable warrant issued on 23.4.2007 had been returned after due service or returned unserved as there is no report to that effect. If the bailable warrant had been received the report ought to have been made in the order sheet. Otherwise the learned Magistrate could have awaited their return and then passed necessary orders. Despite the above, the learned Magistrate had ordered for issuance of bailable war rants for appearance of the petitioner on 9.8.2007. On the same date the accused put in appearance through the counsel and prayed for time for appearance before the court for exemption of appearance of the said date. In view of the above, there was no occasion for the learned Magistrate for arriving at the finding that been the case the counsel for the accused would not have put in appearance after the order has been passed for summoning accused by bailable warrant for is appearance on 9.8.2007. There was thus no need for the learned Magistrate to presume otherwise. 6. The intention of the courts being to secure the presence of the accused and where the accused has put in his appearance thorough the counsel even the rejection of the prayer for converting arrest warrant to bailable warrant in such circumstances is not at all justified to say the least. 7. In the facts and circumstances therefore I am inclined to accept this petition under Section 482 Criminal Procedure Code with a view to secure ends of justice and to prevent the abuse of the process of the court and direct that the subsequent order passed on 25.7.2007 after the order for issuance of bailable warrant for the appearance of accused for 9.8.2007 is set aside and the accused petitioner shall be deemed to have been summoned by bailable warrant of Rs. 10,000/- in terms of earlier part of the order dated 25.7.2007 passed by the learned Magistrate. The accused is directed to appear before the learned Magistrate on 27.8.2007 and furnish bail bonds of Rs. 10,000/- as ordered by the learned Magistrate. In view of the above, this petition stands allowed. 10,000/- in terms of earlier part of the order dated 25.7.2007 passed by the learned Magistrate. The accused is directed to appear before the learned Magistrate on 27.8.2007 and furnish bail bonds of Rs. 10,000/- as ordered by the learned Magistrate. In view of the above, this petition stands allowed. The subsequent the operation of the order dated 25.7.2007 commencing from: HINDI MATTER 275194 is quashed and set aside.In view of the above, the application moved under Section 70(2) Criminal Procedure Code becomes infructuous and the order dated 28.7.2007 is accordingly set aside.This criminal misc. petition is accordingly allowed as above.Petition allow *******