Whether Magistrate can cancel arrest warrant against accused in his absence?

 In my considered opinion, there is no law that the accused shall personally remain present for cancellation of warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned Magistrate without insisting the for appearance of the Applicant/accused. It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrate straight way take a view that warrant cannot be cancelled unless accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4429 of 2013

Decided On: 24.12.2013

 Arunkumar N. Chaturvedi  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

M.L. Tahaliyani, J.

1. Heard the learned counsel Mr. Rishi Bhuta for the Petitioner and the learned Additional P. P. Mr. Patil, for the State of Maharashtra.

2. The Applicant is accused no. 2 in Criminal Case No. 1304/SS/2006 pending in the Court of Metropolitan Magistrate, 7th Court, Dadar for the offence punishable under Section 138 of Negotiable Instruments Act. The warrant has been issued against the Applicant as he was absent on the date of hearing. The Applicant had applied for cancellation of warrant through his advocate. It is submitted that the application has been rejected by the learned Metropolitan Magistrate on the ground that the Applicant was not present when the application for cancellation of warrant was made before the Magistrate.

3. The judgments of Andhra Pradesh High Court and Delhi High Court were cited before the learned Magistrate. The learned Magistrate without considering those judgments has stated that the said judgments were not binding upon him.

4. Since the Applicant was ready to appear before the Magistrate after cancellation of warrant and since there was reasonable apprehension in the mind of the Applicant that he might be put beyond the bars if he appeared before cancellation of warrant, the learned Magistrate should have considered the application on merits.

5. In my considered opinion, there is no law that the accused shall personally remain present for cancellation of warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned Magistrate without insisting the for appearance of the Applicant/accused. It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrate straight way take a view that warrant cannot be cancelled unless accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made. In the circumstances, I pass the following order:-

(I) The non-bailable warrant issued against the Applicant stands cancelled.

(II) The Applicant shall appear before the Trial Court on next date of hearing.

(III) The copy of this order shall be forwarded to the Chief Metropolitan Magistrate, Bombay for being circulated to all the Additional Chief Metropolitan Magistrate and Metropolitan Magistrate.

(IV) The Writ Petition stands disposed of.

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