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Deivasigamani v. The State rep. by the Inspector of - CRIMINAL REVISION CASE No.1665 of 2002  RD-TN 804 (11 October 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE A.KULASEKARAN
CRIMINAL REVISION CASE No.1665 of 2002
2. S. Mahalingam ..... Petitioners -Vs-
The State rep. by the Inspector of
Central Crime Branch,
Egmore, Chennai. ... Respondents Criminal Revision against the order in C.M.P.No.2509 of 2002 in C.C.No.218 of 1993 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai.
For Petitioners : Mr. K.S.Natarajan
For Respondent : Mr.A.N.Thambidurai, Govt. Advocate Crl.Side. :ORDER
Criminal Revision Petition is filed against the orders dated 23.08.2 002 made in C.M.P.No.2509 of 2002 in C.C.No.218 of 1993 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai.15.
2. It is the case of the petitioner that on a complaint preferred by the defacto complainant, the respondent herein has registered a case in Crime No.736/1991 for alleged offence under Sections 420, 406 read with 34 I.P.C. against the petitioners and four others. The said case has been posted on 13.08.2002. On the date, the petitioners herein could not appear before the Court as they were employed in the Public Works Department of the Government of Tamil Nadu and were entrusted the work of removal of encroachment. Unfortunately, the abovesaid fact was not brought to the notice of the Trial Court. Hence, the Trial Court ordered Non-Bailable Warrant on that date against the petitioners. On 23.08.2002, the petitioners have filed a petition under Section 70(2) Cr.P.C. to recall the warrant.
3. Mr.K.S.Natarajan, learned Counsel appearing for the petitioners submitted as mentioned below:-
On 23.08.2002, the petitioners' Counsel was not present due to Advocates boycott, but the petitioners were very much present in the said Court. Instead of calling the petitioners' name, the case was called mentioning the name of the counsel and the petition to recall NBW was dismissed immediately as the counsel was absent, however, the next minute, they had made representation to the court and prayed for recalling the warrant based on the application under Sec.70(2) Cr.P.C. The said representation of the petitioners was not considered by the learned Magistrate, ultimately remanded them to judicial custody, knowing well that it was Friday. Later, the petitioners were released on bail on Monday. The learned Counsel submitted that the petitioners are the Executive Engineers in the Public Works Department of the Government Tamil Nadu and consequent to the said imprisonment, the Department allegedly initiated action against the petitioners. The entire amount payable also paid by the petitioners which is admitted in the evidence dated 28-06-2001 of P.W.1. Indeed, the said witness deposed categorically that he did not want to proceed against the petitioners herein.
4. The petitioners were very much available at the time of calling of the cases on 23-08-2002 which is evident from the impugned order passed by the learned Magistrate that "A1, A2, A3, A5, A11 and A14 present with warrant Recall U/sec. 70 (2) Cr.P.C. and the same is dismissed. NBW pending against A6. Other accused present. Remanded A1, A2 , A3, A5, A11 and A14 by 06-09-2002".
5. Now, it is necessary to look into provisions of Section 70 of Cr.P.C. and Section 309 of Cr.P.C. which are relevant to this case. "70. Form of warrant of arrest and duration – (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the Presiding Officer of such Court and shall bear the seal of the Court (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed."
6. Form No.2 of second schedule of Cr.P.C. is model of warrant which is an order addressed to a certain person to arrest the accused and take him into custody and produce him before the court. An arrest being a deprivation of personal liberty it is incumbent of the Magistrate to issue warrant in accordance with law. Magistrate or Court, before which the case is pending has jurisdiction to cancel warrant
U/sec. 70 (2), of course it also empowered to refuse to cancel it.
7. Section 309 of Cr.P.C. runs as follows:- "309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be impose on him.
8. Under Article 21 of the Constitution of India, speedy trial is a fundamental right of an accused. Speedy and expeditious trial and enquiry were envisaged under Section 309 of Cr.P.C. The provisions of Section 309 of Cr.P.C. have to be read harmoniously. Section 309 comes into operation after taking cognizance and not during the period of investigation. Power to make an order of remand under Section 167 is available only during pendency of investigation.
9. Under Section 309 of Cr.P.C. the Magistrate in the exercise of his judicial discretion order remand of accused to keep in view whether the witnesses are present or reasonable cause for remand where sufficient evidence is obtained to raise a suspicion about the complicity of an accused person in the offence. The discretion to make a suitable order for remand is to be exercised judicially keeping in view of the facts and circumstance of each case including the nature of charge, the gravity of the alleged offence, the area of investigation, antecedents of the accused and all other relevant factors which may help the court in determining whether to keep the accused in custody or release him on bail. The Court is to ensure the presence of the accused, just, fair and smooth enquiry and trial of the offences charged. Orders of remand ought not to be passed mechanically. If the discretion is exercised in an arbitrary or unjudicial manner is subject to review by the superior courts in accordance with law.
10. In the case on hand, the petitioners herein were unable to appear before the trial court on 13-08-2002 and given instructions to the counsel and prayed for dispensing with their appearance. Unfortunately, the counsel could not represent the petitioners, with the result Non-bailable warrant was ordered on the same day on 13-08-2002, returnable on 23-08-2002. It is evident that on 23-08-2002 the petitioners have filed an application under Section 70 (2) of Cr.P.C. to recall the warrant. On that day, the counsel for the petitioners herein did not appear when the case was called. Immediately, the same was dismissed after calling, without noting the fact that the petitioners were very much available in the court. The impugned order of remand also disclose the said fact that the petitioners were present along with other accused, but they were remanded to judicial custody consequent to the order of dismissal of their petition to recall the warrant. Apparently, when the petitioners surrendered before the court with an application to recall the warrant, dismissal of the same mechanically without considering it on merits is unreasonable. While so, the remand order passed by the Magistrate is unsustainable. Admittedly, in the impugned order of remand, no reason has been assigned by the learned Magistrate. Admittedly, no witnesses were present on the day of remand. Indeed, the petitioners have proved their bonafide by filing a petition explaining the reason for their non-appearance on 13-08 -2002. PW1 also deposed before the said court that he has no intention to proceed against the petitioner herein as they have already settled the amounts payable by them. Beyond that, the petitioners are all respectable persons occupying higher post in the State Government. While so, without considering the above factors, remanding the petitioners mechanically would amount to exercise of discretionary power in an unjudicial and arbitrary manner. Hence, interference of this Court is very much warranted. In the result, the order of remand and consequent imprisonment of the petitioners are quashed and the revision is allowed. Sml/rsh
1. The XI Metropolitan Magistrate, Saidapet, Chennai. 2. The Public Prosecutor, Madras.
3. The Inspector of Police, Central Crime Branch, Egmore, Chennai.
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