In a rare case, the Andheri Metropolitan Magistrate Railway Mobile Court has issued a non-bailable warrant (NBW) to a complainant in a cheque- bouncing case, directing him to arrest the accused, 'with the help of the Versova police', and produce him before the court.
The move came after the accused refused to appear before the court, though the case was registered against him in 2008.
Earlier, the court used to issue summons through the police, and warrants were issued to the police. An NBW against the accused was issued to the complainant when the latter refuted the police's claims that the accused did not reside at the address mentioned in the summons and warrants.
Advocates HH Nagi and Chaula Solanki were representing Brigadier M Jaisinghani, who filed the case against Bashir Shaikh.
"The complainant came in touch with the accused in 2007, when he got to know that the accused was about to sell his property. The Bandra property was worth Rs 1.3 crore. The complainant decided to pay Rs 25 lakh initially, and once the entire property was handed over by Shaikh, the complainant was supposed to pay the remaining amount. Thus Rs 10 lakh and Rs 15 lakh were paid in December 2007 and January 2008, respectively."
After this, it turned out Shaikh was not the owner of the property. Jaisinghani then asked Shaikh to return the money to him. Shaikh allegedly issued him a cheque worth Rs 25 lakh, which bounced. A cheque-bouncing case was registered against Shaikh under Section 138 of the Indian Penal Code (IPC).
"The case was registered at the Andheri Metropolitan Magistrate Railway Mobile Court, while a separate cheating case was registered at the Bandra court. Meanwhile, through an application, the accused pleaded to the Bandra court to shift the case to the Andheri court, and so both cases were tried at the Andheri court in 2014. However, the accused refused to appear before the court even after many summons, bailable warrants, and, finally, an NBW. The earlier warrants were issued to the police," Nagi said.
Till 2014, Shaikh used to regularly appear before the court. The case had almost reached the judgment stage and the Bandra court shifted the case to the Andheri court around this time. It was from this stage that Shaikh started skipping the court.
"When Shaikh did not appear before the court even after several warrants, it declared him an absconder. Recently, when the court asked the accused's advocate why he was not appearing, the advocate said his client never received any summons. It was when we informed the court that the accused very much resides at the place mentioned in the warrants that the court, under Section 73 of the Criminal Procedure Code (CrPC), directed the complainant to arrest the accused with the help of the police, and produce him either before the police station or before the magistrate court," said Nagi.
Legal experts DNA spoke to said that the court's direction to the complainant -- to arrest the accused with the help of the police – was extremely rare. Senior criminal lawyers Rizwan Merchant and Ayaz Khan welcomed the move.
"This provision has been rarely used till date. These kinds of provisions would definitely reduce the burden of the police while chasing the accused," Merchant said.
Khan said that he had never heard of any court issuing an NBW under Section 73 of the CrPC before. "It is a very good move. The use of the Section clearly means that the it does not preclude the court using the services of any person, which could include a complainant, other than policemen to implement its directives."
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