CRMMO/665/2026 on 12 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 665 of 2026 Reserved on: 5.10.2026 Date of Decision: 12.10.2026. Anbaid Mohmad Rather …. Petitioner Versus State of HP …. Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : M/s Kumar Kaustubh and Ambika Thakur, Advocate. For Respondent-State : Mr Ajit Sharma, Deputy

Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing the order dated 16.6.2026, passed by the learned Judicial Magistrate First Class, Indora, District Kangra (learned Trial Court), in the case titled State of H.P. v. Danish Ajmal and others,

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

vide which the application for the petitioner’s exemption was rejected, and non-bailable warrants were issued against him.

2. It has been asserted that the police filed a charge-sheet before the learned Trial Court against the petitioner for the commission of offences punishable under Sections 126(2), 190, 191(2), and 351(2) of the Bharatiya Nyaya Sanhita (BNS), 2023. All the offences are bailable and carry a maximum sentence of imprisonment for two years. The petitioner had gone to his native place in Jammu & Kashmir. He engaged an advocate, authorising him to appear before the learned Judicial Magistrate First Class. The petitioner could not attend the Court on the date fixed, and an application for his exemption was moved. However, this application was rejected, and non-bailable warrants of arrest were issued against the petitioner.

3. I have heard Mr Kumar Kaustubh and Ms Ambika Thakur, learned counsel for the petitioner, and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

4. Mr Kumar Kaustubh, learned counsel for the petitioner, submitted that the learned Trial Court erred in issuing non-bailable warrants of arrest and dismissing the application for seeking exemption. The offences are bailable, and the learned Trial Court should not have issued non-bailable warrants of arrest. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

5. Mr Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the petitioner had absented himself from the Court without any reasonable cause, and the learned Trial Court was justified in issuing non-bailable warrants to secure the petitioner’s presence. Hence, he prayed that the present petition be dismissed.

6. I have considered the submissions made at the Bar and have gone through the records carefully.

7. The certified copy of the order passed by the learned Trial Court shows that the present petitioner had filed an application seeking exemption from personal appearance, which was dismissed on the ground that it could not be considered because the accused had not furnished the bail bonds.

8. It was held by the Orissa High Court in Debasis Samantaray v. State of Orissa and another, 2003 Cri.LJ 3774, that an application to seek exemption from personal appearance is maintainable even though the accused has not appeared before the Court. It was observed: “7. A perusal of the impugned order dated 13-12-2002 reveals that the S. D. J. M. was labouring under the erroneous impression that before considering the application under Section 205, Cr. P. C., personal appearance of the accused in Court is very much necessary. This point has been clearly answered by this Court in Somanath Misra v. State (1990) 3 OCR 577, relying on several decisions, and it has been held that it is not mandatory for the accused to personally appear in Court before filing the application under Section 205(1), Cr. P. C. The said view was later reiterated in the case of Kaveri alias Benga alias Sukanti Raikarai v. State (1994) 7 OCR 645; (1994) 78 Cut LT 881; (1995 Cri LJ 224). In the said decision, the application for dispensing with personal attendance of the accused in Court under Section 205, Cr. P. C. was considered by the High Court in spite of the fact that the accused had been shown as an absconder in the charge-sheet and N. B. W. had been issued. The question as to under which circumstances personal attendance of an accused can be dispensed with had been considered by this Court in the decisions cited supra as well as in Ramesh Ch. Lath v. State (1992) 5 OCR 97 (1992 Cri LJ 2263), Bikram v. State (1994) 7 OCR 721, Radhanath v. Babulal (1986) 62 Cut LT 445, and last but not least, Surojit v. Sanatan, (1999) 17 OCR 473. The ratio of the aforesaid decisions is that the power under Section 205(1), Cr. P. C. can be exercised by a Magistrate not only at the stage of issuance of summons to the accused, but also at a subsequent stage, even after issuance of N. B. W. Law is no more res integra that even if an application under Section 205, Cr. P. C. is rejected at an earlier stage, such petition can be allowed at a subsequent stage by invoking the provisions of Sections 273 and 317, Cr. P. C. Thus, it can be safely concluded that an application under Section 205, Cr. P. C. is maintainable even though the accused has not appeared personally, and the Magistrate should not hesitate to exercise discretion only on that ground.”

9. The Hon'ble Supreme Court held in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401: 2001 SCC (Cri) 1254: 2001 SCC OnLine SC 1004 that the Magistrate has jurisdiction to exempt the accused from personal appearance when he feels that doing so will not cause any injustice to any party. It was observed at page 408 : -

19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where, due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons, the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with, the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.

10. In the present case, the accused had appeared before the Court through his advocate and filed an application for exemption. Therefore, it cannot be said that the accused never intended to appear before the Court or was interested in prolonging the trial. Hence, in these circumstances, the learned Magistrate was not justified in issuing non-bailable warrants of arrest.

11. Consequently, the present petition is allowed, and the order dated 16.6.2026, passed by the learned Judicial Magistrate First Class, Indora, District Kangra, in case titled State of H.P. v. Danish Ajmal and others is ordered to be set aside, qua the petitioner. The learned Magistrate shall not take coercive steps pursuant to the order passed by him in case the petitioner appears before him on 16.10.2026, the date fixed by the learned Magistrate.

13. The observation made hereinbefore shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.

(Rakesh Kainthla)

Judge 12th October, 2026 (Chander)