SCR.A/31/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 31 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ====================================== == 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== == DHARMESH MANIBHAI PATEL Versus STATE OF GUJARAT & ANOTHER ====================================== == Appearance : MR VM PANCHOLI for the Petitioner MR KT DAVE, APP for the Respondent No.1 MR HN BRAHMBHATT for the Respondent No.2 ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 10/01/2008 SCR.A/31/2008 2/5 JUDGMENT ORAL JUDGMENT 1. Rule. Mr. K.T. Dave, learned Additional Public Prosecutor waives service of notice on behalf respondent No.1, State of Gujarat and Mr. H.N. Brahmbhatt, learned advocate waives service of notice on behalf respondent No.2. 2. Having regard to the facts of the case, by consent of the learned advocates for the parties, this matter is taken up for hearing today. 3. By this petition under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 20th December, 2007 passed by the learned Judicial Magistrate First Class, Gandhinagar in Criminal Case No. 7278 of 1998, whereby non-bailable warrant has been issued against the present petitioner. 4. The facts giving rise to the present petition are that the petitioner had preferred Criminal Miscellaneous Application No.14144 of 2007 before this Court for quashing and setting aside the Criminal Complaint pursuant to which Criminal Case No.7278 of 1998 has been registered and is pending before the learned Judicial Magistrate First Class. On 18th December, 2007, this Court had passed the following order in the said application. “1. Mr. V.M. Pancholi,learned advocate for the applicant states that he has received a copy of the affidavit-in-reply made by the respondent No.2 today. He, therefore, seeks some time. S.O. to 26th SCR.A/31/2008 3/5 JUDGMENT December, 2007. 2. Learned advocates for the parties have jointly submitted that they would seek an adjournment in the proceedings of Criminal Case No.7278 of 1998 pending in the Court of learned Judicial Magistrate First Class, Gandhinagar. Needless to state that if such a request is made, the concerned Court shall consider the same in light of the fact that this application is pending before this Court.” 5. It is the case of the petitioner in the present petition that on 20th December, 2007, the learned advocate who is appearing on behalf of the petitioner before the learned Judicial Magistrate First Class, Gandhinagar had drawn attention of the learned Judicial Magistrate to the aforesaid order dated 18th December, 2007 and had requested in writing that the petitioner accused has not remained present in the Court as his near relative had expired and had prayed for exemption from personal hearing. It appears that contrary to the statement made before this Court on 18th December, 2007, the learned advocate for respondent No.2 instead of jointly seeking adjournment alongwith the learned advocate for the petitioner, submitted an application to the effect that this Court has not granted stay in the application and that as the petitioner accused had not remained present in the Court, non-bailable warrant be issued against him, pursuant to which, by the impugned order dated 20th December, 2006, the learned Judicial Magistrate has issued non-bailable warrant against the present SCR.A/31/2008 4/5 JUDGMENT petitioner, which has given rise to the present petition. 6. Heard Mr. V.M. Pancholi, learned advocate for the petitioner, Mr. K.T. Dave, learned Additional Public Prosecutor for respondent No.1, State of Gujarat and Mr. H.N. Brahmbhatt, learned advocate for respondent No.2. 7. In view of the facts noted above, it is amply clear that it was jointly submitted before this Court that the learned advocates for the parties would seek an adjournment in the proceedings of Criminal Case No.7278 of 1998 pending before the learned Judicial Magistrate First Class, Gandhinagar. The learned Judicial Magistrate was also directed to consider the said request in the light of the fact that Special Criminal Application No.14144 of 2007 is pending before this Court. In view of the aforesaid, it was not fair on the part of the learned advocate for the respondent No.2 to move the application seeking issuance of non-bailable warrant against the present petitioner resiling from the earlier statement made before this Court that an adjournment would be jointly sought for by the learned advocates for the parties. Moreover, once the attention of the learned Judicial Magistrate was drawn to the order dated 18th December, 2007, the learned Judicial Magistrate ought to have considered the request for adjournment as well as exemption from personal appearance in the light of the said order. The learned Judicial Magistrate was therefore, not justified in issuing the non-bailable warrant vide order dated 20th December, 2007, which is accordingly required to be quashed. SCR.A/31/2008 5/5 JUDGMENT 8. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 20th December, 2007 passed by the learned Judicial Magistrate First Class, Gandhinagar in Criminal Case No.7278 of 1998, whereby non-bailable warrant has been issued against the petitioner accused is hereby quashed. Rule is made absolute accordingly. Direct service is permitted today. (H.N.DEVANI, J.) shekhar/-