Pat HC | Magistrate’s power to seek appearance would not extinguish after allowing an application under S. 205 of Code of Criminal Procedure

Patna High Court: Birendra Kumar, J. allowed the application of the petitioner to set aside the order which had issued a non-bailable warrant of arrest against the petitioners.

The petitioner’s prayer for dispensation with personal appearance and for allowing appearance through their lawyer in the exercise of power under Section 205 of the Code of Criminal Procedure, 1973 was disallowed by the Court. Cognizance was taken for the offence under Section 406 of the Penal Code, 1860 against the petitioners.

 The impugned order revealed that the prayer had been refused on the grounds that the process of non-bailable warrant of arrest had already been issued against the petitioners. Hence, an application under Section 205 of the Code of Criminal Procedure was not maintainable.

Senior Advocate, Chitranjan Sinha and Advocate Rajesh Ranjan submitted for the petitioners that no process was ever served on the petitioners, and the impugned order didn’t reveal that the summons issued were ever served on the petitioners. Without any proof of service of summons, warrant of arrest had been issued, which was in itself an improper order. It was further contended that issuance of a non-bailable warrant of arrest was no bar for consideration of prayer under Section 205 of the Code of Criminal Procedure since the Magistrate could always order for the personal appearance of the accused, whose prayer under Section 205 of the Code of Criminal Procedure had been allowed. The counsel also assured that the petitioners were ready to appear as and when required by the court to facilitate the progress of the trial.

The High Court held that since there was no service report of summons on record when the court issued a bailable warrant of arrest and similarly, there was no service report of the bailable warrant of arrest when the court issued a non-bailable warrant of arrest, the issue of a non-bailable warrant of arrest was not applicable to the facts and circumstances of the instant case. In the interest of substantial justice, the impugned order was set aside and the matter was remitted back to the lower court to pass necessary order in accordance with the law.

In view of the above-noted facts, the instant application was allowed and directions were issued to set aside the impugned order. [Sachida Nand Mishra v. State of Bihar, 2019 SCC OnLine Pat 1763, decided on 23-09-2019]

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