1 APPP: 632/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.632 OF 2010 IN CRIMINAL APPLICATION NO.2897 OF 2010 Prakash Raghunath Shenai .... Applicant Vs. State of Maharashtra & Ors. .... Respondents Applicant present in person. Mr. P.S. Hingorani, APP for State. Mr. R.R. Dhuru i/by Mr. P.P. Kakade for respondent no.2. Coram : Smt. R.P.SondurBaldota, J. Date : 17th January, 2011 P.C. 1. The applicant herein is the complainant in Criminal Case No.29/C of 1996 renumbered as 1621/S of 2007 pending in the Court of Metropolitan Magistrate, 31st Court at Vikhroli, Mumbai. Respondent no.2 herein has been cited by the applicant as a witness in the case. It appears that despite service of witness summons, respondent no.2 has not remained present in the Court on even a single day. He had filed Criminal Application No.2897 of 2010 in this Court making grievance that the witness summons had been issued against him without specifying the reason for being examined as a witness. The second grievance was that he had appeared in the Court in the last two years in the case as an accused and after his discharge, issuance of witness summons to him is unnecessary 2 APPP: 632/2010 harassment. The application came to be disposed off by this Court by the order dated 20th September 2010 recording that there was no infirmity in the order passed by the Court of issuance of witness summons to him. It was, however, directed that after he appeared before the learned Magistrate, the Magistrate shall complete recording of his evidence as expeditiously as possible and that after the respondent no.2 appeared before the Court, the Magistrate shall not issue bailable and non-bailable warrants against him. After obtaining this order from the Court, it was incumbent upon respondent no.2 to remain present before the learned Magistrate for recording of evidence immediately on the next date of hearing of matter. However, this did not happen. After 20th September 2010, the matter was on the board of the learned Magistrate on 26th September 2010, 16th October 2010, 20th November 2010 and 16th December 2010. Now the matter stands adjourned to 20th January 2011. As respondent no.2 did not attend the matter, the applicant had requested for issuance of non bailable warrant against him. The learned Magistrate, however, by the order dated 20th November 2010 refused the request on the ground that this Court has barred him from issuing bailable and non-bailable warrants against the witness. It is unfortunate that the Magistrate did not read the order dated 20th September 2010 correctly. The order directs Magistrate not to issue bailable and non-bailable warrants against the witness only after he appeared before the Court. Since respondent no.2 had not appeared before the Court, the learned Magistrate ought to 3 APPP: 632/2010 have resorted to the provisions of law and issued an order of non- bailable warrant against respondent no.2. 2. Mr. Dhuru, the learned counsel appearing for respondent no.2 submits that no fault can be find with respondent no.2 because on 26th September 2010, 16th October 2010 and 20th November 2010, he had appeared before the Court through his lawyer and applied for exemption. On the last date i.e. on 16th December 2010, according to him, the learned Judge was not sitting. It is not open for respondent no.2 to state that he had appeared through lawyer, because respondent no.2 while appearing as a witness cannot appear through his lawyer. He has to appear in the case to depose in the matter and as such he must be present in person. Respondent no.2 has clearly acted contrary to the order dated 20th September 2010 obtained by him. He has in fact been responsible for delaying the proceedings before the learned Magistrate. 3. When the matter was called out in the morning session, the counsel then appearing had made a statement that respondent no.2 is out of India. However, Mr. Dhuru who now appears, states that respondent no. 2 is not out of India, but he is out of Mumbai. He also makes a statement that respondent no.2 will appear before Metropolitan Magistrate, 31st Court at Vikhroli, Mumbai on 20th January 2011 at 3.00 pm. for the purpose of recording of evidence. In view of this statement made to the Court, the request made in the application of issuance of warrant against respondent no.2 is not being granted. However, it is made clear that if respondent no.2 4 APPP: 632/2010 does not remain present before the learned Magistrate on 20th January 2011, at 3.00 pm., the consequence of issuance of non- bailable warrant against him to secure his presence will follow. The Court can also adopt summary procedure for punishment of non- attendance of by a witness in obedience to summons under Section 350 Code of Criminal Procedure. 4. Learned counsel for respondent no.2 requests for directions to be given for either examination of respondent no.2 on commission or expeditious recording of evidence of respondent no.2. Considering the conduct of respondent no.2, this Court is not inclined to issue the first direction sought. It is patent from the conduct of respondent no.2 that he is clearly trying to avoid appearing in person before the Court of law, which cannot be permitted. As regards the second direction, the order dated 20th September 2010 already provides for that. 5. The application is disposed off. Parties to act on the authenticated copy of this order. (Smt. R.P.SondurBaldota, J)