High Court of Delhi was dealing with the petition filed under Section 401 read with Section 482 Cr.P.C. on behalf of the petitioners assailing the order passed by the learned Metropolitan Magistrate in Complaint Case filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, whereby non-bailable warrants were issued against them.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the absence of the petitioners before the Trial Court was unintentional. It was further submitted that the petitioners have filed their respective undertakings by way of affidavits before this Court, in terms of which they have undertaken to appear before the Trial Court on the next date of hearing.
Respondent’s Contention:
Learned Counsel for the respondent submitted that in view of the undertakings given on behalf of the petitioners, respondent No.1 has no objection in case the NBWs issued against them are cancelled.
HC’s Observations:
After hearing both the sides Court noted that three petitions have been filed on behalf of the petitioners seeking quashing of the Complaint Case, wherein the impugned order dated 27.11.2021 came to be passed.
Court observed that on 27.11.2021, separate applications seeking exemption from personal appearance were moved before the Trial Court on behalf of the petitioners, stating that they resided outside Delhi and it would be difficult for them to travel to Delhi and appear before the Court under the circumstances.
HC relied upon the case of Vikas v. State of Rajasthan, where SC stated that: “Another such instance of judicial discretion is the issue of nonbailable warrant in a complaint case under an application of Section 319 CrPC. The power under Section 319 CrPC being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.”
Court stated that the fact that the petitioners had appeared before the Court on earlier occasions, albeit to get the warrants issued against them cancelled, was not in dispute. A contention was raised by the complainant regarding non-payment of cost by the accused, however it was recorded in the order that the status of the payment of cost was unclear.
Court stated that it was also observed by the Trial Court that the mere fact that the petitioners were not residents of Delhi was not a justifiable ground to exempt them from personal appearance. Court noted that at the time of filing of the applications for exemption on behalf of the petitioners, the circumstances were not exactly normal. The country was in the grip of the COVID-19 pandemic and thus, travelling between states, even if not completely prohibited, was subject to fulfilment of certain criteria, as a preventive measure.
HC Held:
After evaluating submissions made by both the parties the Court held that “the dispute between the parties being essentially private in nature, balance between societal interest and personal liberty of the accused, in terms of the decisions cited hereinabove, would be struck if the NBWs issued against the petitioners are set aside. Court stated that securing liberty of the petitioners assumes more significance in light of the fact that no satisfaction has been recorded by the Trial Court in the impugned order to the effect that the petitioners are likely to abscond and/or are deliberately evading process of the Court. At the same time however, this Court is also cognizant of the fact that trial in the present case has been delayed on account of the petitioners.”
Bench: Hon'ble Mr. Justice Manoj Kumar Ohri
Case Title: Sanjay Bhakta Mathema v. Vipin Kumar Sharma & Ors.
Case Details: CRL.REV. P. 14/2022 and CRL.M.A. 339/2022
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