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Arvind v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 3921 of 2007  RD-AH 5186 (23 March 2007)
CRIMINAL MISC. WRIT PETITION NO. 3921 OF 2007
State of U.P. and others.............................................Respondents.
Hon'ble Mrs. Poonam Srivastav, J.
Heard Sri Rahul Chaturvedi learned counsel for the petitioner and learned A.G.A. for the State.
First Information Report was registered at case crime no. 28 of 2002 under Sections 147, 452, 323, 506, 427 I.P.C. against the petitioner along with other co-accused namely Kailash, Hari Om, Shyam Kumar, sons of Jamuna Prasad and Jamuna Prasad son of Badan Singh. The accused in the instant case obtained bail from the competent court. Charge was framed against the accused on 31.3.2005. Since all the accused are working out of district of Mathura, therefore, an application was moved before the Magistrate for exemption of their personal attendance on 31.3.2005, which was allowed on the same day. The Magistrate passed an order on the application itself exempting their personal attendance till further orders. On 2.8.2005, non-bailable warrant was issued against the accused including the present petitioner. When it came to their knowledge, a request was made for withdrawing non-bailable warrant and the same was rejected on 11.12.2006. A criminal revisin no. 26 of 2007 was filed against the said order. The revisional court dismissed the revision vide order dated 21.2.2007. Both the orders are impugned in the instant writ petition.
Submission is that the petitioner is at present in Dubai, therefore, it is not possible for him to be present in the court on each and every date fixed. Counsel for the petitioner has placed reliance on a decision of the Apex Court in case of M/s Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd. And others 2001 (43) ACC page 760. Paragraph nos. 16, 17 and 18 of the aforesaid decision have been quoted in the writ petition.
On the basis of the aforesaid observation made by the Apex Court, counsel for the petitioner has contended that the Magistrate has discretion to exempt personal attendance of the accused, which he did so but without recalling said order, non-bailable warrant has been issued against him.
After hearing counsels for the respective parties, I dispose of the instant writ petition with a direction that order issuing non-bailable warrant in respect of the present petitioner shall be kept in abeyance till he is required to give statement under Section 313 Cr.P.C. in the peculiar set of circumstances of the present case. However, the petitioner shall ensure that he is present when his statement is to be recorded during the trial.
It is made clear that this order shall be effective in respect of the present petitioner only.
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