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Karnataka High Court · body

2014 DIGILAW 586 (KAR)

Gunashekar v. State by Hosahalli Police

2014-06-13

K.N.PHANEENDRA

body2014
ORDER 1. The Counsel for the petitioner is absent. Heard the learned High Court Government Pleader and perused the records. This petition is filed by the petitioner seeking quashing of the Non-Bailable Warrant (NBW) issued against the petitioner herein by the learned Civil Judge and Judicial Magistrate First Class, Kudligi, directing him to produce the absconding accused in the case. 2. The records disclose that a person by name Babu S/o Raheem is arrayed as accused in C.C. No. 130 of 2013 for the offences punishable under Sections 279 and 304-A of Indian Penal Code, 1860 read with Sections 187 and 183 of Motor Vehicles Act, 1988. The records further disclose that, the accused was absconding from appearance before the Court. For that reason, on 21-8-2013, the Court issued NBW against the accused. On 30-9-2013, a notice to surety was also ordered. Subsequently, the Court issued notice to the owner of the vehicle calling upon him to produce the absconding accused. Subsequently, the owner presented himself and prayed time to produce the accused, but he failed to do so. Therefore, NBW was issued to the owner, against which order the present petition is filed. 3. The learned Magistrate has lost the sight that the owner did not stand as surety for the appearance of the accused. The Court has taken the recourse of Criminal Procedure Code, 1973 and issued notice to surety of the accused to produce the accused. When a person has not executed any bond or stood as surety for the appearance of the accused, none else can be called upon to produce the accused except the police or the surety of the accused, unless he is bound by any orders of the Court or bonds executed by him. That was not the procedure being followed by the learned Magistrate and nowhere he mentioned under what authority he can issue notice to the owner and call upon the owner to produce the driver before the Court and in the absence of producing the accused, how the Court can issue NBW to the owner of the vehicle. 4. Issuance of NBW has been very casually taken by the learned Magistrate. The constitutional guarantee of right to liberty ought to have been borne in mind by the learned Magistrate. 4. Issuance of NBW has been very casually taken by the learned Magistrate. The constitutional guarantee of right to liberty ought to have been borne in mind by the learned Magistrate. Unnecessarily no person can be called upon to the Court or no warrant can be issued unless the authority is thereunder any statute for the time being in force. Nowhere the learned Magistrate mentioned under what provision of law he has called upon the owner and asked him to produce the accused and under what provision of law he issued NBW against the owner of the said vehicle. It is pertinent to note here, the order sheet, which discloses that the owner did not stand as surety for the accused. If at all the owner is the surety or stood as a surety for the appearance of the accused, if he does not produce the accused before the Court, the Court can take appropriate action in accordance with the procedure contemplated under the Criminal Procedure Code. 5. Therefore, I am of the opinion, the order of the learned Magistrate is against the law and it does not stand to judicious scrutiny and the same is liable to be quashed. In the above said circumstances, the petition is allowed. The order dated 21-1-2014 passed by the learned Magistrate in issuing NBW against the petitioner and all subsequent orders reissuing NBW against the petitioner are hereby quashed.