Whether court can direct the party to serve a bailable warrant to the witness personally?

 It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.{6}

7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants.

Rajasthan High Court

Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978

Print Page

Whether magistrate should issue a warrant for securing the presence of complainant if the police have filed a closure report in the case?

The said Magistrate summoned the Petitioner who showed his inability to appear on the due date as per the endorsement made in the summons and prayed for adjournment. However, the learned Magistrate issued bailable warrants to secure his presence as a complainant for consideration of cancellation of the First Information Report. The Petitioner again showed his inability to appear on the due date because of his cases having been listed for hearing in the High Court. Now, the learned Additional Chief Judicial Magistrate has issued non-bailable warrants against the Petitioner to secure his presence for 4.10.2002. It is claimed by the Petitioner that he is no more interested in the First Information Report and he himself is not the offender, therefore, the learned Additional Chief Judicial Magistrate, Arki has no jurisdiction to force his appearance as a complainant/informant in the Court, in a case in which the police has submitted a cancellation report.

3. I have heard the learned Counsel for the Petitioner and the learned Law Officer for the State.

4. There is no dispute that on the basis of the First Information Report lodged by the Petitioner the investigating agency has filed a cancellation report. As and when such a report is submitted by the police, the Magistrate is required to give a notice to the complainant/informant with a view to afford him an opportunity of being heard before passing final orders on such report. In case despite service of notice the complainant/informant does not appear to oppose the cancellation report submitted by the Police, it is not necessary for the Magistrate, to issue fresh process to the complainant/ informant to ensure his presence. Non-appearance of the complainant/informant despite service of notice in such a case will have the legal consequence of the Magistrate proceeding to pass appropriate orders on the cancellation report in the absence of the complainant/informant. The Magistrate has no power to compel the appearance of the complainant/informant who has failed to appear to oppose a cancellation report after due notice. It is implicit in the non-appearance of the complainant/ informant that he is not interested in opposing the cancellation report and the Magistrate may pass appropriate order as may be warranted by the material placed before him. Thus having once notified the Petitioner of the cancellation report and having given him the option to appear and oppose the cancellation report, if so desired, the learned Additional Chief Judicial Magistrate has no jurisdiction to force the appearance of the Petitioner by issue of coercive processes. His insistence to secure presence of the Petitioner by issue of coercive processes is, therefore, abuse of the process of the Court and the course of action as adopted by the learned Additional Chief Judicial Magistrate cannot be sustained.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. M.M.O. No. 65 of 2002

Decided On: 25.09.2002

Rakeshwar Lal Sood  Vs.  State of H.P.

Hon'ble Judges/Coram:

M.R. Verma, J.

Citation: MANU/HP/0179/2002,

Print Page

MP HC Advises Trial Courts Not To Issue Non-Bailable Warrant At First Instance

Reliance was placed on the order passed by this Court in M.Cr.C. No. 4417/2017 dated 21/03/2017 in which it has been held that personal appearance of the accused is not mandated under the provisions of Section 70 (2) and that the same can be decided in his absence by deciding one way or the other. At page 3 of the order, it is observed by this Court that in cases where the accused absence is inadvertent on a hearing date, though the trial Court has a right to issue non-bailable warrant, it was advisable that the said power be not exercised in a routine and mechanical manner and in the larger interest of justice, try to secure the presence of the accused on the next date of hearing by way of a bailable warrant at the first instance. 
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

MCRC-13504-2017

Decided On: 11.08.2017

Hindustan Coca Cola Beverages Pvt. Ltd. Vs.The State of Madhya Pradesh

Hon'ble Judges/Coram:
Atul Sreedharan, J.

Print Page