Heard learned counsel for the applicant, learned A.G.A. and perused the material on record.
This application under Section 482 Cr. P .C. has been moved by the accused applicant for quashing the impugned order dated 15.01.2010, passed by the learned Additional Chief Judicial Magistrate, Court No.2, Unnao whereby he has ordered for issuance of non-bailable warrant against him. Learned counsel for the accused applicant contends that the accused applicant is practising lawyer in district court, Unnao. A complaint case No. 449 of 2008; Hariom Nigam Versus Akram Rizvi, under Section 138 N.I. Act was pending against him. The accused applicant on the date fixed in the case i.e. 15.1.2010 could not attend the court. However, he moved an application for his exemption. The learned Additional Chief Judicial Magistrate rejected his application and ordered for issuance of non-bailable warrant against him. The accused applicant had already paid the amount to the complainant which was said to be due against him. Therefore, the complaint case under Section 138 N.I.Act would not proceed against him. The learned Magistrate did not consider this fact; rather ordered for issuance of non-bailable warrant against the accused applicant, which is illegal.
From a perusal of the impugned order, it appears that the complainant was present on the date of hearing of the case and the accused applicant was absent. However, someone had moved an application on his behalf for adjournment of the case which was rejected by the learned Magistrate on the ground that the learned Sessions Judge, vide order dated 2.1.2010 had directed to continue proceed with the case even then the accused applicant was absent. Therefore, he ordered for issuance of non-bailable warrant against him. I do not find any illegality in the impugned order which does not call for any interference by this Court. The application has got no force and is liable to be rejected.
The application is, therefore, rejected.
However, it is observed that in case the accused applicant appears before the court concerned within three weeks from today and moves any fresh application for bail, the same shall be heard and decided by both the courts below, if possible, on the same day in view of the law laid down by the Full Bench of this Court in Srimati Amrawati and another Vs. State of U.P. 2004 CBC page 705.
Till then the execution of non-bailable warrant issued by the trial court against the accused applicant and the notice issued against the sureties will be kept in abeyance.
Order Date :- 28.1.2010 Sanjay