Petitioner has made the following substantial prayer :
"A)The Hon'ble Court be pleased to modify the order dated 6.10.2010 passed in Special Criminal Application NO.511/2010 and be further pleased to convert the order passed by Ld. 3rd Additional Senior Civil Judge and Judicial Magistrate (First Class), Ahmedabad (Rural) of issuance of non-bailable warrant into that of bailable warrant on suitable conditions."
Petitioner is one of the accused in Criminal Case No.1230/02 which has since been committed for Sessions trial. The learned Judicial Magistrate, First Class, Ahmedabad (Rural) vide his order dated 10.11.09 provided that since the petitioner and other accused named in the order had not been remaining present despite service of process, non-bailable warrant be issued against them. By the said order, the learned Magistrate also committed the case for Sessions trial. This order was challenged by the petitioner in Special Criminal Application No.511 of 2010. The said petition came to be dismissed by an order dated 6.10.2010 in following manner:
"Petitioner has challenged an order dated 10.11.09 by which the learned Judicial Magistrate, First Class, Ahmedabad (Rural) was pleased to commit Criminal Case No.1230/02 for trial before Sessions Court. The learned Magistrate has examined all relevant aspects of the matter and found that the case is required to be tried before the Sessions Court being a sessions triable case. He, therefore, committed the case for sessions trial. No infirmity in the impugned order is found. The petition is therefore dismissed."
Counsel for the petitioner submitted that such order is required to be modified and non-bailable warrant issued by the learned Magistrate is required to be recalled. He submitted that though Special Criminal Application No.511/10 was primarily aimed against the issuance of non-bailable warrant, somehow, the same appears to have been argued before the Court only on the question of legality of order of committal. Counsel submitted that under similar circumstances, co-accused one Dinesh Keshavlal approached this Court by filing Special Criminal Application No.216/10, in whose case the Court was pleased to convert the non-bailable warrant into bailable warrant of Rs.5,000/- on condition of appearing before the Magistrate.
On the other hand, learned APP Ms.Punani opposed the petition contending that no case for interference is made out.
From the record it emerges that Special Criminal Application No.511 of 2010 came to be dismissed on 6.10.2010. It is true that the only discussion in the order dated 6.10.10 was with respect to the legality of the order passed by the learned Magistrate of committing the case for trial. However, the fact remains that prayer for cancellation or conversion of non-bailable warrant was not granted. Under the circumstances, if the petitioner had any grievance, he ought to have challenged such order or approached this Court shortly thereafter. The petitioner has approached nearly two years later. In the meantime, obviously, he would not have remained present before the Magistrate. Under the circumstances, I am not inclined to accept the prayer. The application is therefore rejected. It is, however, clarified that if the petitioner surrenders before the appropriate court, his bail application shall be taken up expeditiously and decided in accordance with law.
(Akil Kureshi, J.) (vjn) Top