criwp386.06 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 386 OF 2006 Rajendra Satyanarayan Gilda age 45 years, occ. business r/o Opp. Balaji Mandir Latur, Tq. & Dist. Latur. .. PETITIONER VERSUS State of Maharashtra through the Police Inspector Police Station, Shivaji Nagar Latur Tq. & Dist. Latur. .. RESPONDENT Mr. A.N. Irpatgire, advocate for the petitioner. Mr. S.D. Kaldate, APP for the State. ===== CORAM : A.V. POTDAR, J. DATE : 5 th OCTOBER, 2011 ORAL JUDGMENT ; 1 Rule. Rule made returnable forthwith. Heard finally by consent. 2 By present writ petition under Article 227 of the Constitution of India, petitioner/ applicant is questioning the correctness of order passed on 20-6-2006 by the Chief Judicial Magistrate, Latur in RCC no. 285/2006 criwp386.06 2 directing issuance of non-bailable warrant against the present petitioner. 3 Heard learned counsel for the petitioner and learned APP for the State. perusal of the record shows that on the complaint of TILR, Latur, offence under sections 467, 468, 470, 420 r/w section 34 of the Indian Penal Code came to be registered against the present petitioner in Shivaji Nagar police station, Latur on 14-2-2006 at C.R. No. 23/2006. It is urged that name of the present petitioner does not appear in the said FIR nor there is any allegation against the petitioner in the said FIR. It appears that after completion of investigation, charge sheet came to be filed on 31-5-2006 before the learned Chief Judicial Magistrate, latur. Case was registered in the Court of Chief Judicial Magistrate,Latur as RCC no. 285/2006. On 1-6-2006 an application was moved by the investigation officer stating that in connection with this offence one more accused is still to be arreseted and prayed for extension of 30 days to carry out further investigation. On that application, on 20-6-2006, learned Chief Judicial Magistrate, Latur passed order as follows : . Read application. Charge-sheet received against only one accused. I.O. has to arrest another accused by Name Rajendra Gilda. Issue N.B.W. against him. Time is granted till 1.7.2006 for remaining investigation. criwp386.06 3 . Perusal of this order does not indicate that present petitioner is shown as absconding in the charge-sheet and his presence is not secured inspite of best efforts of the investigation officer. Learned APP states across the bar that petitioner was shown as absconded accused but this fact is not reflected in the impugned order. After the petition was filed, notice was issued to the respondent and accordingly learned APP filed affidavit in rely of one Prakash Giri, working as API. Perusal of this affidavit in reply nowhere indicates the steps taken to secure presence of applicant / petitioner before non-bailable warrant was issued against him. Chapter VI of the Code of Criminal Procedure lays down the procedure to compel appearance of the accused before the criminal Court. Neither the record nor the affidavit in reply disclose steps taken by the investigation officer to secure presence of the petitioner, who, according to the learned APP, is shown as absconding accused in the charge sheet. In the absence of following the due procedure as contemplated in Chapter VI of the Code of Criminal Procedure, it is not expected to issue non-bailable warrant against the accused whose presence is required in the criminal case. Considering this aspect, as affidavit in reply is silent about the steps taken by the investigation officer to secure presence of the accused, order impugned is liable to be quashed and set aside. Accordingly, order of issuance of non-bailable criwp386.06 4 warrant against the petitioner / accused is hereby quashed and set aside. Rule is made absolute accordingly. 4 It is hereby clarified that even though the order impugned is quashed and set aside, the learned Chief Judicial Magistrate, Latur is not precluded to take steps to secure presence of the petitioner in accordance with law. ( A.V. POTDAR ) JUDGE dyb