CRLP/7595/2009 of A.Venkata Swami, Vs The State of A.P, on 31 December 2009

ORDER:

Heard Sri N.Vijay, learned counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned PublicProsecutor for the sole respondent.

The petitioner is the fourth accused in C.C.No.106 of 2007 onthe file of the II Additional Chief Metropolitan Magistrate, Hyderabad. Due to his absence on the date of hearing on 07.07.2009, the trialCourt had dismissed the application filed for condonation of hisabsence under Section 317 of the Code of Criminal Procedure andissued a non-bailable warrant to secure his presence. The petitionerfiled Crl.M.P.No.3446 of 2009 for recall of the warrant claiming to besuffering from Malaria on 07.07.2009 and to be taking bed rest asadvised by the doctor. The learned Magistrate, who dismissed theearlier application due to the non-filing of any medical certificate, hasdirected to take summons to the doctor, who issued the medicalcertificate, and as the doctor was not produced by the petitioner,Crl.M.P.No.3446 of 2009 was also dismissed presuming that there isno truth in the contentions of the petitioner and that the petitioner andhis counsel could not take any interest in producing the doctor to beexamined as a witness.

The petitioner now approaches this Court claiming that he hadfiled not only the medical certificate issued by the doctor, but also theHaematology Report confirming the physical ailment at the relevanttime and claiming that he is co-operating for the disposal of the case and not indulging in any delay tactics. He requested for an opportunityto participate in the trial without the threat of the execution of thecompulsive process and any consequential detention.

Sri N.Vijay, learned counsel for the petitioner had assured thatthe petitioner will forthwith submit to the judicial process, if he is givenan opportunity and absolutely had no intent of showing any disrespector disobedience to the orders of the trial Court.

Rules of Procedure are intended to be handmaids of justice andthe parties need not be punished with frightful results for any technicallapses or absence of diligence. It is not as though the petitioner hasbeen indifferent and defiant to the proceedings before the Court, evenon 07.07.2009, on which day the counsel had filed a petition underSection 317 of the Code of Criminal Procedure to condone hisabsence. However, the learned presiding judge of the trial Courtcannot be found fault for dismissing the application due to the absenceof the petitioner on 07.07.2009. In Crl.M.P.No.3446 of 2009, thepetitioner had in fact filed not only the medical certificate issued byDr.K.V.Sunder Ram, but also the Haematology report issued byPioneer Diagnostic Centre. While it is true that the petitioner was notable to produce the doctor in spite of three opportunities to examinethe doctor as a witness, such failure to produce the doctor may notautomatically suggest the Haematology report also to be notdependable. While, the order, dismissing Crl.M.P.No.3446 of 2009due to dissatisfaction of the learned presiding judge with the reasonmentioned in the petition for the absence on the part of the petitioner, isnot without jurisdiction, in order to secure the ends of justice, thepetitioner can be given one more opportunity to submit himself to thejudicial process of the trial Court and participate in the furtherproceedings.

Therefore, the non-bailable warrant issued against the petitioner

Conclusion

Therefore, the non-bailable warrant issued against the petitioner in C.C.No.106 of 2007 on the file of the II Additional Chief MetropolitanMagistrate, Hyderabad, shall be kept in abeyance for 15 days fromtoday and, in the meanwhile, the petitioner shall appear before the trialCourt and continue to appear on all further dates of hearing withoutdefault. The trial Court may obtain appropriate personal bond from thepetitioner for such appearance on all the dates of hearing and indefault of the petitioner so appearing before the trial Court andsubmitting to the judicial process, the non-bailable warrant alreadyissued shall be executed. In case of his appearance and execution ofa personal bond, as required by the trial Court, the said non-bailablewarrant shall be recalled.

Accordingly, the Criminal Petition is ordered.

___________________

G. BHAVANI PRASAD, J

17[th] September 2009KH