SCR.A/19/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 19 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 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 ? ====================================== GIRISH GOVINDBHAI RAO - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ====================================== Appearance : MR BHARAT T RAO for Applicant(s) : 1, MR M.R. MENGDE, A.P.P for Respondent(s) : 1, LAW OFFICER BRANCH for Respondent(s) : 2, MR JB PARDIWALA for Respondent(s) : 2, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 29/01/2008 ORAL JUDGMENT The present petitioner who was one of the original accused in Criminal Case No.689/1991 and 690/1991, 66 of 1994 to 85 of 1994 by SCR.A/19/2000 2/6 JUDGMENT virtue of this petition under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 (the 'Code' for short) has challenged the order passed by learned Additional Metropolitan Magistrate, Ahmedabad dated 10.01.2000. By the said order, the learned Chief Metropolitan Magistrate, Ahmedabad directed the petitioner - accused to pay Rs.500/- by way of penalty, and upon that condition, the earlier order passed by him to issue non-bailable warrant shall stand canceled. Learned Counsel for the petitioner Mr.B.T. Rao, vehemently submitted that as per the relevant provisions contained in the Code, and especially drawing this Court's attention to Section 73, 78 and 441 of the Code, submitted that the impugned order passed by the learned Metropolitan Magistrate is contrary to law and the provisions contained in the Code. It is submitted that a private criminal complaint was filed by the Registrar of Companies against the petitioner and others for technical offences, which are bailable, and the offences are non- cognizable. At the time when the complaint was filed, the learned Magistrate was pleased to issue summons against the original accused persons, including the present petitioner - accused. After the petitioner was served with the summons, he was remaining present before the learned Magistrate, but on account of unavoidable circumstances, neither him or his learned Counsel could remain present on one date, and thereupon, the learned Metropolitan Magistrate, directly issued non- bailable warrant against the accused - petitioner. Before the warrant could be served, the petitioner - accused voluntarily remained present before the learned Magistrate with an application to set-aside the order of non-bailable warrant on 10.01.2000. The learned Magistrate passed the impugned order on 10.01.2000, directing the petitioner - accused to deposit Rs.500/- by way of penalty, and thereupon, the order of non- SCR.A/19/2000 3/6 JUDGMENT bailable warrant shall be canceled. It is submitted that even so far as the fine prescribed for the offence, if at all after the conclusion of trial, the complainant succeeds in proving its case, then it is 0.50 paise per day, till the contravention continues. It is submitted that in all there are 22 complaints, and in all the complaints, the learned Magistrate had issued non-bailable warrant. As per the impugned order passed by the learned Magistrate for the cancellation of each warrant, the petitioner had to pay Rs.500/- by way of penalty, and thereby, the total comes to about Rs.11000/-, which may be even more than the amount of fine, which could be imposed upon him, if at all the case is proved by the complainant. It is further submitted that after the impugned order was passed in the year - 2000, till today, only the present petitioner - accused punctually remains present before the learned Magistrate, and the remaining accused persons are absconding, and therefore, till date there is no progress whatsoever in the criminal case. Reliance was placed by the learned Counsel Mr.Rao, upon the case of Motiram & Ors.Vs.State of M.P., reported in AIR 1978 SC 1594 and the case of G.Narasimhulu & Ors. Vs.Public Prosecutor, High Court of Andhra Pradesh reported in AIR 1978 SC 429. Therefore, it is submitted that as per the relevant provisions contained in the Code, and considering the fact that the offence involved in the private complaint was bailable, and it was non- cognizable case, and at the first instance, the learned Metropolitan Magistrate had issued summons against the petitioner - accused, and there was only solitary lapse in not remaining present in the said Court, and hence, the order passed by the learned Metropolitan Magistrate directly issuing non-bailable warrant, instead of issuing bailable warrant against the accused is bad at law, and without jurisdiction, and the same is required to be set-aside. On behalf of the opponent No.1 - State, learned Assistant Public SCR.A/19/2000 4/6 JUDGMENT Prosecutor, Shri M.R. Mengde vehemently opposed this petition and submitted that the present petition itself is not maintainable. If at all the Criminal Revision Application is permissible, then the petitioner - accused should have filed Criminal Revision Application. That the impugned order passed by the learned Metropolitan Magistrate is passed within his discretionary powers. It is further submitted that the petitioners did not join the original complainant - the Registrar of Companies, who is necessary party in this petition, and therefore, the present petition deserves to be dismissed. Learned Counsel for the respondent No.2, the Registrar, Chief Metropolitan Magistrate Court, submitted that the present respondent No.2 is wrongly joined. He is not an appropriate or a necessary party, and therefore, no order should be passed against the Respondent No.2. Now, considering the above submissions made by the counsel for the parties, and considering the relevant papers produced in this petition, it is not disputed that the present petitioner was one of the accused persons in a private complaint instituted by the Registrar of Companies, on account of violations of certain provisions under the Companies Act. As submitted above by the learned Counsel of the petitioner, the offence involved in the complaint was bailable offence, and it was non-cognizable case. After the complaint was registered, the learned Magistrate passed the initial order to issue summons, and the petitioner was punctual in attending the concerned Court. But, on account of unavoidable circumstances, he could not remain present at one of the dates, and therefore, the learned Magistrate issued non- bailable warrant against him. But, before the non-bailable warrant could be executed, he himself remained present along with an application before the learned Magistrate, requesting him to cancel the order of non- SCR.A/19/2000 5/6 JUDGMENT bailable warrant. The learned Magistrate by virtue of the impugned order dated 10.01.2000, though canceled the earlier order of issuing non-bailable warrant, but imposed a condition that the petitioner should pay Rs.500/- by way of penalty. Being aggrieved by that order the petitioner is here before this Court. Now, considering the relevant provisions contained in the Code, and especially considering Section 73, 78 along with Section 441 of the Code, it becomes clear that instead of directly issuing non-bailable arrest warrant against the accused, the Magistrate should have issued bailable warrant against him. At the first instance, the Court was pleased to issue summons against the accused. Here is not a case, wherein the accused had earlier furnished any surety and thereupon he was bailed out. Moreover, the fact remains that the impugned order was passed in the year - 2000, sufficient period has gone by now, and it is submitted that till today, no substantial progress is made in the case, because the remaining other accused persons are absconding. As submitted above, the fine, if at all the offence against the present petitioner is proved, is 0.50 paise per day, till the contravention continues. The learned Counsel Mr.Rao submits that in all there are 22 complaints and in each complaint, for the purpose of cancellation of order of non-bailable warrant, the petitioner - accused is directed to pay Rs.500/- by way of penalty and the total comes to Rs.11000/-, which may be even more than the amount of fine, which ultimately the learned Magistrate could have imposed upon him, if at all the complainant could have proved his case. In the above circumstances, it appears that the impugned order passed by the learned Magistrate deserves to be quashed and set-aside even by exercising the extra-ordinary supervisory jurisdiction vested in SCR.A/19/2000 6/6 JUDGMENT this Court. In the result, the present petition is hereby allowed, and the impugned order passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad dated 10.01.2000, in Criminal Case No.689/1991 and 690/1991 and 66 of 1994 to 85 of 1994 is hereby quashed and set-aside, and Rule is made absolute in the aforesaid terms. (J.C. Upadhyaya, J.) binoy