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sridhar pasumarthy (ADVOCATE)     18 April 2013

Recall nbw application dismissed

Respected Members,

In a police case of 324 IPC (Bailable Offence in A.P.), when the case has reached the stage of arguments, the magistrate issued NBW against accused for his absence and for want of representation.  The said NBW was recalled  four days later.  

The magistrate again issued NBW for want of his presence on the next adjournment.  Ten days later, an application under section 70(2) Cr.P.C. was filed.  Unfortunately, the magistrate dismissed the said application stating that " It is the second time that the NBW was issued against the accused at the stage of arguments, that there is every likelihood of the accused to flee from justice and hence, the petition is dismissed.  Remanded the accused to judicial custody."

It is pertinent to state here that the accused was on bail by furnishing property certificates and no order of cancellation of bail was passed by the magistrate at the time of dismissing recall petition.

Is it justified to remand the accused to judicial custody in a bailable offence that too without cancelling the bail?

Now, what is the recourse for the accused to come out of jail?

 

Whether an application under section 436(2) Cr.P.C. is sufficient?

Pls give your valuable suggestions. 



Learning

 4 Replies

arvind singh mann (advocate)     19 April 2013

dear there is sattled law that  the courts can not convert the bailalbe offenses into non bailable offense, dear file a fresh bail application as magistrate is not aware of law&get ur accused out of jail, or move to the session court agaist the orderof the magistrate there is [state of delhi vs janardhan],s case where it was held  & direction was issued that no magistrate has right to convert  a bailable offense into none bailable offense,one more importent thing is that there is no provision in Crpc to recall warrants once issued it has to b cancelled,instead of WORD recalling of warrants ,its has to be cancellation of warrants. 

arvind singh mann (advocate)     19 April 2013

dear there is sattled law that  the courts can not convert the bailalbe offenses into non bailable offense, dear file a fresh bail application as magistrate is not aware of law&get ur accused out of jail, or move to the session court agaist the orderof the magistrate there is [state of delhi vs janardhan],s case where it was held  & direction was issued that no magistrate has right to convert  a bailable offense into none bailable offense,one more importent thing is that there is no provision in Crpc to recall warrants once issued it has to b cancelled,instead of WORD recalling of warrants ,its has to be cancellation of warrants. 

advocate praveen (prop.)     19 April 2013

This is the discreation of the court to pass an order, and you have right to file an applicaiton.  So you can file fresh application for cancellation of NBW with fresh grounds.  If the court still not cancelled the NBW you can file the fresh application with Session court.

regards

Chattopadhyay Arghya (Advocate )     18 June 2013

One thing is important in the question that magistrate declined to recall warrant and the accused was taken to J/C. If  he is taken to J/C what would be the use of that Warrant of Arrest? That we can say, if he is enlarged on bail once again before term of expiration of warrant in general , then warrant can be executed? How a magistrate can reject recall application when taken to J/C, instead voluntary appearence he had better option to wait for arrest at least warrant would have ceased to effect , one risk of custody, here he runs two risks of custody one with voluntary appearence another on further arrest if warrant not recalled or cancelled. I think there should be clear provisions andreference as to real meaning of Recall of warrant, cancelling warrant, status after recall and cancellation; if  recall application dispenses with bail application? It appears from above obsevation of Advocate Maan, he says as recall petition is rejected apply for bail; whether recall of warrant  dispenses with a petition for bail in NBW/A, or N/B case section? if recalled warrant? or recalling order of warrant? there should be cancellation of issued warrant and withdrawal or recalling order of warrant?


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