@JUDGMENTTAG-ORDER
R. Mala, J.@mdashThe Petitioners approach this Court with a prayer to call for the records in proceedings in respect of the order and the warrant
issued by the District Munsif cum Judicial Magistrate No. 1, Usilampatti in C.C. No. 182 of 2007 dated 18.03.2010 and quash the same and
further dismiss the complaint in C.C. No. 182 of 2007 on the file of the District Munsif cum Judicial Magistrate No. I, Usilampatti.
2. The case of the Petitioners is that the Respondent as defacto complainant has filed a complaint for violation of Section 3(k)(i) of Insecticide Act
1968, which was taken on file in C.C. No. 182 of 2007; during the pendency of the case, the Petitioner has filed a petition u/s 205 Code of
Criminal Procedure for the dispensing with the personal appearance of the Petitioners before the trial Court in Cr.M.P. No. 166 of 2008 and the
same was dismissed on 07.01.2008, which was challenged by way of revision in Crl.R.C. No. 227 of 2008 before this Court and the same was
allowed on 20.02.2008 dispensing with the personal appearance of the Petitioners on condition that the Petitioners shall appear as and when
required and also they are directed to co-operate for speedy disposal of the case; after that the matter was posted for several hearings and the
Petitioners were represented through their counsel and another application in Cr.M.P. No. 2610 of 2008 for deletion of some accused from the
accused column and the same was dismissed by the District Munsif cum Judicial Magistrate No. 1, Usilampatti, which was challenged before the
Principal District Sessions Judge, Madurai in Crl.R.P. No. 44 of 2009; in the meanwhile, the matter was listed on 04.03.2010, and adjourned to
18.03.2010, but it was wrongly noted by the counsel appearing for the accused as 08.04.2010 instead of 18.03.2010 and hence on 18.03.2010,
the complainant/Respondent was also absent and the accused/Petitioners neither appeared in person nor through their counsel and hence, the
Judicial Magistrate has issued Non Bailable Warrant against the Petitioners; hence, they have come forward with the present petition.
3. The learned Counsel appearing for the Petitioners would submit that the Non Bailable Warrant issued against the Petitioner is against law and it
is illegal and hence they prayed for the allowing of the petition. To substantiate their arguments, the learned Counsel appearing for the Petitioners
relied upon the decisions of the Apex Court as well as this Court.
4. The learned Counsel appearing for the Respondent would file his counter and submit that the Petitioners are arrayed as A1 to A5 and they are
following the delaying tactics; they filed Cr.M.P. No. 2610 of 2008, that has been dismissed on 01.10.2009 and this Court ordered the
dispensation of the personal appearance of the Petitioners on condition that they shall appear as and when required by the Judicial Magistrate No.
1, Usilampatti; but, the Petitioners have not followed the condition imposed by this Court; their main intention is to drag on the proceedings by way
of filing one after another petition without following the order made by this Court; the conduct of the Petitioner shows that they did not want to
contest the case except to drag on the proceedings even in the initial stage itself from the year 2007 to 2010; hence, he prayed for the dismissal of
the application.
5. Heard the learned Counsel appearing for the Petitioners as well as the learned Counsel appearing for the Respondent and perused the materials
available on record.
6. The Respondent herein has been filed a complaint u/s 3(k)(i) Insecticide Act against the Petitioners, which was taken on file in C.C. No. 182 of
2007; during the pendency, the Petitioners have filed a petition in C.M.P. No. 166 of 2008, that has been dismissed, against which a revision in
Crl.R.C. No. 227 of 2008 has been filed, which was allowed on the following terms:
Accordingly, this Court is constrained to set aside the order of the learned District Munsif cum Judicial Magistrate No. 1, Usilampatti passed in
Cr.M.P. No. 166 of 2008 in C.C. No. 182 of 2007 dated 07.01.2008 and constrained to direct the learned Magistrate to dispense with the
personal appearance of the Petitioners herein on condition to appear as and when required. It is made clear that the Petitioner should be
represented by their counsel regularly before the trial Court and accordingly co-operate for the speedy disposal of the case
After that, the Petitioners have filed a petition in Cr.M.P. No. 2601 of 2008 for deletion of some of the accused from the accused column and the
same was dismissed on 01.10.2009 which was challenged before the District and Sessions Judge in Crl.R.P. No. 44 of 2009. In the meanwhile,
the criminal case has been posted on 18.03.2010, when the Petitioners neither appeared themselves or through their counsel, the District Munsif
cum Judicial Magistrate No. 1, Usilampatti has issued Non Bailable Warrant against the Petitioners/accused.
7. The first limb of the argument advanced by the learned Counsel appearing for the Petitioners is that the offence against the Petitioners is only a
bailable offence, but the Judicial Magistrate has erred in issuing Non Bailable Warrant, which is illegal.
8. The second limb of the argument advanced by the learned Counsel appearing for the Petitioners is that on the date of issuance of Non Bailable
Warrant, the complainant himself is absent and hence, the Judicial Magistrate has committed error in issuing Non Bailable Warrant instead of
dismissing the complaint u/s 256 Code of Criminal Procedure To substantiate his claim, he has relied upon the decisions of the Apex Court as well
as this Court.
9. At this juncture, it is appropriate to consider the Section 3(k)(i) of the Insecticide Act.
3. Definitions. - In this Act, unless the context otherwise requires,-
(k) ""misbranded"" - an insecticide shall be deemed to be misbranded-
(i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular, or if its
package is otherwise deceptive in respect of its contents; or
Admittedly on 18.03.2010, Non Bailable Warrant has been issued to the Petitioners. The diary extract would run thus:
Complainant absent. A7, A7 present. A1 to A4 appearance dispensed. While the Court directed to appear before the court for copies. But not
present. No representation for said accused. No stay order copy produced. Hence issue NBW against for A1 to A4. execute the same on
payment of process by 15.04.2010.
10. Now this Court has to consider as to whether the issuance of Non Bailable Warrant is correct or not?
11. At this juncture, it is appropriate to consider the decision in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, ,
wherein, the Apex Court held as follows:
52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the
survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an
individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired
result. This could be when:
it is reasonable to believe that the person will not voluntarily appear in court; or
the police authorities are unable to find the person to serve him with a summon; or
it is considered that the person could harm someone if not placed into custody immediately.
54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or
the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and
complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must
very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused
seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully
satisfied that the accused is avoiding the court�s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted
to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
In R. Sarathkumar v. The Inspector of Police, C-9, Police Station, Neelankarai, Chennai, wherein, this Court has held as follows:
Even when the offence is non-bailable, if a Magistrate taking cognizance of such offence decides that warrant should be issued, when the Court has
granted anticipatory bail, shall issue only a bailable warrant in the first instance. Therefore, in a case of bailable offence when the Magistrate
decides to issue a warrant, at the first instance, he shall issue only a bailable warrant, (i.e.), the warrant containing endorsement specified u/s 71
Code of Criminal Procedure Therefore, non-bailable warrant issued without a preceding bailable warrant where the offence is bailable, is not in
accordance with the scheme of the Code of Criminal Procedure and hence illegal. Therefore, while exercising the power conferred u/s 87, Code of
Criminal Procedure and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant
(including the endorsement provided u/s 71 Code of Criminal Procedure) If the person does not appear before the Court even after execution of
bailable warrant, then and only when the Magistrate may issue a non-bailable warrant. Therefore, in all cases u/s 138 of the Negotiable Instruments
Act, though it is possible or there is no legal infirmity for the Magistrate to issue a non-bailable warrant for the reasons to be recorded in writing,
yet, considering the bailable nature of the offence, u/s 138 of the Negotiable Instruments Act the Magistrate shall always issue ""bailable warrant"" at
the first instance. For the above reasons there appears no reason or no circumstances warranting the issue of non-bailable warrant in this case.
In Regupathi v. Govindan and Anr. reported in (2006) 2 M.L.J. 336, wherein, this Court has held as follows:
7. The learned Judge has also held in the decision, as cited supra, that:
Non-bailable warrant Issued without a preceding bailable warrant where the offence is bailable is not in accordance with the scheme of the Code
of Criminal Procedure and hence illegal. Therefore, while exercising the power conferred u/s 87, Code of Criminal Procedure and issuing a
warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant (including the endorsement provided
u/s 71, Code of Criminal Procedure). If the person does not appear before the Court even after execution of bailable warrant, then, and only then
the Magistrate may issue a non-bailable warrant. Therefore, in all cases u/s 138 of the Negotiable Instruments Act, though it is possible or there is
no legal infirmity for the Magistrate to issue a non-bailable warrant for the reasons to be recorded in writing, yet, considering the bailable nature of
the offence u/s 138 of the Negotiable Instruments Act the Magistrate shall always Issue ""bailable warrant"" at the first instance. For the above
reasons there appears no reason or no circumstances warranting the issue of non-bailable warrant in this case.
12. Considering the above said citations, the dictum laid down by the Apex Court as to when the offence is bailable, in what circumstances Non
Bailable Warrant can be issued. But, in the present case, the Judicial Magistrate has committed error in issuing non bailable warrant, he ought to
have issued only bailable warrant and if the person does not appear even after the execution of the warrant, then, Non Bailable Warrant has to be
issued. In such circumstances, I am of the view that the Non Bailable Warrant issued against the Petitioners are illegal and the same is liable to be
set aside.
13. The learned Counsel appearing for the Petitioners would further submit that in an earlier order, when they are questioning the order made in
Cr.M.P. No. 166 of 2008, this Court has passed the following order:
Accordingly, this Court is constrained to set aside the order of the learned District Munsif cum Judicial Magistrate No. 1, Usilampatti passed in
Cr.M.P. No. 166 of 2008 in C.C. No. 182 of 2007 dated 07.01.2008 and constrained to direct the learned Magistrate to dispense with the
personal appearance of the Petitioners herein on condition to appear as and when required. It is made clear that the Petitioner should be
represented by their counsel regularly before the trial Court and accordingly co-operate for the speedy disposal of the case.
A perusal of the above order would show that it is true a direction has been given to the Petitioner to appear before the Judicial Magistrate Court
as and when required and it was made clear that they should be represented by their counsel regularly and they are also directed to co-operate for
the speedy disposal of the case.
14. Admittedly, when the matter came up for hearing on 18.03.2010, the judicial Magistrate passed the following order:
Complainant absent. A7, A7 present. A1 to A4 appearance dispensed. While the Court directed to appear before the court for copies. But not
present. No representation for said accused. No stay order copy produced. Hence issue NBW against for A1 to A4. execute the same on
payment of process by 15.04.2010.
Since, the offence against the Petitioners is bailable, they are entitled only for bailable warrant not Non bailable. The Petitioners are specifically
directed on 04.03.2010 as follows:
Complainant present. A6, A7 are absent. Petition filed and allowed. A1 to A5 appearance dispensed on perusal of records copies not furnished.
Hence for copies. Hence the all accused are appeared before this Court on 18.03.2010. If fails suitable orders will be passed.
Considering the above said order, though a specifically direction has been given to the accused they did not appear before the trial Court. In such
circumstances, the arguments advanced by the learned Counsel appearing for the Petitioners does not merit acceptance.
15. The learned Counsel appearing for the Petitioners would further submit that on the date of hearing i.e. on 18.03.2010, the
complainant/Respondent was also absent and hence, they prayed for the dismissing of the complaint. But, the above said argument does not merit
acceptance.
16. At this juncture, it is appropriate to consider the decision relied upon by the learned Counsel appearing for the Respondent in U.P. Pollution
Control Board Vs. Dr. Bhupendra Kumar Modi and Another, . Considering the offence u/s 3(k)(i) of the Insecticides Act, it is an offence against
the Society and it affect the public health at large, should be dealt with strictly dehors technical objections and hence quashing the complaint in a
routine manner is not warranted. Even though this Court has issued a specific direction to the Petitioners to co-operate for the speedy disposal of
the case, they file one after another application to delay the disposal of the case and hence, the act of the Petitioners is not appreciable.
17. In such circumstances, I am of the opinion, I am constrained to issue the following directions:
(i) the Non Bailable Warrant issued against the Petitioners are set aside;
(ii) the Petitioners are directed to appear before the District Munsif cum Judicial Magistrate No. 1, Usilampatti on 20.09.2010
(ii) the District Munsif cum Judicial Magistrate No. 1, Usilampatti is directed to disposed of the case in C.C. No. 182 of 2007 within a period of
three months from the date of receipt of a copy of this order.
18. With the above said observations, this criminal original petition is disposed of. Consequently, connected miscellaneous petitions are closed.