THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL PETITION No.12754 of 2010 ORDER: This Criminal Petition is filed challenging the docket order, dated 31.08.2010, passed by the Special Judicial First Class Magistrate, Kurnool, in Crl.M.P.No.3415 of 2010 in C.C.No.597 of 2007, wherein and whereby the learned Magistrate refused to re-call the non-bailable warrant issued against the petitioner. The petitioner is facing trial in C.C.No.597 of 2007 before the said Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act. When the matter was posted for hearing on 30.07.2010, the petitioner was absent and as such, non-bailable warrant was issued against him. Coming to know of the said fact, the petitioner moved the Court below and filed petition being Crl.M.P.No.3415 of 2010 seeking to re-call the non-bailable warrant issued against him. Even when such a petition to re-call the non-bailable warrant was taken up, the petitioner was absent and as such, the Court below dismissed the said petition by an order, dated 31.08.2010. In those circumstances, the petitioner approached this Court and filed the present Criminal Petition. Heard both sides. In my considered view, the Court below is justified in issuing non-bailable warrant against the petitioner and also dismissing the said petition filed under Section 70 Cr.P.C. seeking to re-call the said non-bailable warrant. If the accused is continuously absent, there is no option, but to issue non-bailable warrant against him and that, when a petition to re-call the said non-bailable warrant is filed, the presence of the accused is mandatory. However, in the instant case, when the petition which was filed seeking to re-call the non-bailable warrant was taken up by the Court below on 31.08.2010, the petitioner was absent. Hence, the Court below rightly dismissed the said petition. I do not find any error in the said order passed by the Court below. However, as the petitioner expresses his willingness to appear before the Court below and file another petition seeking to re-call the non-bailable warrant issuing against him, this Court is of the view that one more opportunity can be given to the petitioner herein to appear. Accordingly, the petitioner is permitted to appear before the Court below on or before 31.12.2010 and file an application to re-call the non-bailable warrant issued against him, and on such appearance and an application being filed to re-call the non-bailable warrant, the Court below may consider the same and re-call the non-bailable warrant issued against the petitioner herein. The Criminal Petition is accordingly disposed of, at the stage of admission. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 22nd December 2010 DR