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SAMI FAROOQ (Owner)     29 September 2018

138 nbw recall

Is there any chance of court not recalling NBW when accused is present?


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 9 Replies

Adv Deepak Joshi +917017821512 (Advocate)     29 September 2018

Post complete material facts.

SAMI FAROOQ (Owner)     29 September 2018

I was in bangalore on 22-9-2018 and gave my statement u/s 313. Thereafter the Judge said 15-10-2018 as next date, but don't know how and what happened ut next date was posted as 25-9-2018 in the order sheet. I could not go to bangalore so soon as i have severe back pain and moreover i thought next dae was 15-10-2018. My lawyer too was under impression that next date was 15-10-2018. He was not in bangalore on 25-9-2018 and so when case was called, NBW was issued.

I am afraid to go to bangalore as i feel my application to recall NBW might not be accepted.

SOLOMON.RAJ (advocate/director)     30 September 2018

dear queriest

since u were sick n down with back ache please obtain a medical certificate n go aheadand file your recall petition under section 70 of criminal procedure code and the judgewill not remand you but will definitely recall thewarrant as you have a ground.


SOLOMON RAJ
Advocate High Courts ofAp &TS
Bhrat Gaurav samman Awardee.
ph.9866545086
Email. justiceleague367@yahoo.com

N.K.Assumi (Advocate)     30 September 2018

This appears to be very technical isues judging from the precedents of Supreme Court cases of K.M.Mathew and Adalat Prasad (s). in warrant case. It is also to be noted that the power of trial court is limited to review once it is signed and judgment or final order passed disposing off the case and that issue of process cannot be equated to judgment. The issue require more clarifications either to altered the order by the trial court or to approach the higher forum for recall of NBW.

SAMI FAROOQ (Owner)     30 September 2018

Sir You mean to say that in 138 cheque bounce case, court has power not to recall warrant and send me to jail? Even if I personally appear and apply for recall of NBW?

N.K.Assumi (Advocate)     30 September 2018

I have stated that there is very deep  technical issue regarding your query. Consider this, if NBA is issued to a wrong person, under what provisions of law  the Magistrial Court will exercise the power to recall? and indeed the Magistrial Court do not possess quashing power and the rest is there to be seen in my first responds. Should the aggrieved party approach under 482 etc? It appears that as of now the statements of law lean in favor of higher forum and this is the issue with ambigous or lacuna in law, which I am of the view that requires to be address. Any clarification from the members will be appreciated.

SAMI FAROOQ (Owner)     30 September 2018

SIR

NBW IS RECALLED BY MAGISTRATE ON REGULAR BASIS, IT IS A COMMON OCCURANCE IN SECTION 138 CASES.

N.K.Assumi (Advocate)     30 September 2018

Exercise of power and location of power to exercise the power are two distinct  different matters.  What you have stated is only the practise of the court, not the location of power is what I meant. Thanks. 

R Trivedi (advocate.dma@gmail.com)     03 October 2018

It is bad and arrogant on the part of magistrate to issue NBW directly after S.313 is completed. Generally incompetence or corruption is the cause. He shd have issued the BW or probably since the stage was of defence witness he could have warned closure of defence. Pl be fully prepared with alternative bail papers, approach him only, and tell him the truth. He may. You can also move sessions court if you are afraid or feel that he is biased.

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