IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1533 OF 2009 Tushar Tukaram Khetal ..Applicant Vs. The Special Executive Magistrate and ors. ..Respondents Mr.R.V.Desai, Sr.Advocate h/f. Mr.Yogesh Sankpal, Advocate for Applicant Miss.A.T.Jhaveri, APP for respondent State. CORAM : A. S. OKA, J. DATE : 2nd May, 2009 P.C. 1 Heard learned Advocate for petitioner and learned APP for respondent State. The only substantive prayer in this petition is for quashing the proceedings of chapter case and for quashing non bailable warrant issued against the petitioner. 2 It appears that for challenging the initiation of the same proceeding, the petitioner had filed Criminal Writ Petition No.2560 of 2008 in this Court. The said petition was disposed of by order dated 8th December, 2008. While disposing the petition, this Court observed that :- “Only show cause notice is issued against the petitioner, hence, I am not inclined to interfere as it would be open to the petitioner to reply to the said show cause notice. It would also be open to him to examine witnesses or produce any documents if necessary. After considering the same, if the learned Special Executive Magistrate is of the opinion that it is necessary to call upon the petitioner to furnish interim bond or final bond, then in that event, four days time be given to the petitioner to comply with the terms of the bond.” 3 In this petition it is averred that on 10th December, 2008 a detailed reply to show cause notice was filed by the petitioner. The grievance of the learned Counsel appearing for the petitioner is that instead of passing order on 27th December, 2008 a bailable warrant has been issued by the Special Executive Magistrate against the petitioner. The submission of the learned Counsel for Petitioner is that on a plain reading of the allegations in the show cause notice, the chapter proceedings could not have been initiated by taking recourse to chapter VIII of the Code of Criminal Procedure, 1973 [hereinafter referred to as “the said Code”]. It is submitted that the proceedings could not have been initiated and the same may be quashed. 4 The learned APP produced the record of the chapter case for perusal of this Court. The record shows that as the petitioner remained absent, warrant has been issued by the learned Special Executive Magistrate for procuring the presence of the petitioner. 5 I have considered the submissions. The earlier writ petition was filed by the petitioner challenging the initiation of chapter proceedings. However, this court has not entertained said petition and directed the petitioner to file a reply to the show cause notice and to lead the evidence by examining witnesses, if any. By the order dated 8th December, 2008 this Court directed that if the Special Executive Magistrate is of the opinion that it is necessary to call upon the petitioner to furnish interim bond or final bond then in that event, four days time be given to the petitioner to comply with the terms of the bond. Now by filing this petition, the petitioner cannot pray for quashing the proceedings as in the earlier petition this relief has not been granted in favour of petitioner. 6 I have perused the file of the case. On 13th December, 2008 a detailed order was passed by the learned Special Executive Magistrate by referring to the contents of the Reply filed by the petitioner. On that day, an application was made by the Advocate for petitioner for exemption which was rejected by the learned Magistrate. On 18th December 2008 the Advocate for petitioner again applied for exemption on the ground that petitioner was sick. On the next day i.e. On 23rd December, 2008 the Advocate for petitioner again applied for exemption on the ground that petitioner’s son was to undergo an Eye-Surgery. The said application was not granted and non bailable warrant was issued against the petitioner. Thereafter, the case was adjourned from time to time as non bailable warrant was not served. 7 Learned APP submitted that the presence of the petitioner was required for recording his statement under Section 111 of the said Code. The stage of recording the statement has already gone as summons under Section 113 of the said Code was issued to the petitioner. Learned Counsel appearing for the petitioner on instruction stated that the petitioner does not desire to adduce any oral evidence of himself or by examining any witness. He states that the learned Executive Magistrate may consider detailed reply which is already filed by the petitioner and may pass an appropriate order. 8 It will be necessary to refer to the provisions of Section 115 and 116 of the said Code. Section 116 contemplates that the learned Executive Magistrate is required to hold an enquiry after summons or warrant is served under Section 113 of the said Code. Sub-section 2 of the Section 116 provides that the enquiry shall be made, as nearly as may be practicable, in the manner thereinafter prescribed for conducting the trial and recording of evidence in summons cases. Section 115 confers power in learned Magistrate to dispense with the personal attendance of any person who has been called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behavior and may permit him to appear by a pleader. Thus, sub section 2 of Section 116 and Section 115 of the said Code show that an Executive Magistrate can always insist on personal appearance of the person to whom show cause notice or summons under Section 113 of the said Code is served. The person concerned has to apply for exemption under Section 115. 9 In the present case, the petitioner may not be interested in adducing evidence. However, the learned Magistrate has to hold an enquiry by following the procedure prescribed for summons case. In the said enquiry even if any witness is examined before the learned Special Executive Magistrate, the presence of petitioner or his advocate is required. Therefore, the petitioner cannot contend that after submitting a detailed reply, he is not bound to appear before the learned Special Executive Magistrate. 10 In the circumstances, though a case is made out for quashing the warrant issued against the petitioner, he will have to appear before the learned Executive Magistrate. After the petitioner appears before the learned Magistrate it will be open for the petitioner to apply under Section 115 of the said Code for grant of exemption or permanent exemption. If such application is made, the learned Magistrate will decide the same in accordance with law. 11 Hence, the petition is disposed of with the following order: i. The prayer for quashing the proceeding is rejected by keeping the contentions of the petitioner open. ii. Warrant issued against the petitioner is quashed. The Petitioner shall remain present before the learned Executive Magistrate on such day as may be called upon by the learned Magistrate. It will be open for the petitioner to apply for exemption under Section 115 of the said Code. iii. It is made clear that the present order is passed subject to provisions of Sub-Section 6 of Section 116 of the Code of Criminal Procedure, 1973. iv. All contentions of the parties are expressly kept open. [ A. S. Oka, J. ] appl1533-09