HETALBEN ALIAS HEENABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Misc.Criminal Application No.3423/04 is preferred for quashing of complaint and the said petition is preferred by Hetalben against whom the complaint was also filed for the offence under section 306. It appears that in the said petition only notice was issued and thereafter the petition was admitted but no interim order is passed. Pending aforesaid petition it appears that the trial has proceeded and upon the evidence which came on record the Ld.Magistrate Judge found that there is a case made out for accusation against one Jagdishbhai Dahyabhai Patel and Hetalben @ Heenaben and thereafter the Ld.Magistrate as per order, dated 22.6.05 has added both the persons as accused and has directed for issuance of Non Bailable warrants. It is under these circumstances, the petitioner has preferred another Criminal Misc. Application No.7754/05 in Cri.Misc.Application No.3423/04.

(2.) When the matter is heard for final disposal it has been stated by Mr.Patel for the petitioner that Jagdishbhai Patel, one of the co-accused, against whom the warrant is issued has expired in the accident and therefore only the accused concerned is the petitioner herein and she is having a child aged 6 years. Therefore, when the trial has begun and upon the evidence the Ld.Magistrate has found that the case deserves to be proceeded against the petitioner also by joining the petitioner as one of the accused in the trial, there will not be any valid ground for quashing of the complaint/proceedings of criminal trial against the accused. Ultimately, it will be for the petitioner to defend the trial before the trial court in accordance with law.

(3.) However, it appears that the Ld.Magistrate has issued Non-Bailable Warrant against the petitioner and as a consequence thereof the petitioner may be put to custody and thereafter she may be required to apply for bail. As such, when the charge sheet is already filed and evidence on behalf of the prosecution is going on at the trial, the custodial interrogation may not be required and the major purpose, as such, would be to secure the presence of the accused at the trial. Had it been a case for where further investigation is required, the matter may stand on different footing. Considering the fact that the trial is going on and the evidence on behalf of the prosecution is also recorded of some of the witnesses, I find that the Ld.Magistrate instead of Non-Bailable warrant could have issued bailable warrant by securing the presence of the accused at the trial. Even otherwise also as the circumstance qua the petitioner herein is that she is having child aged 6 years and therefore also the same could be an additional ground for this court to convert the order of Non-Bailable warrant into bailable warrant.