MOHAMMAD IQBAL Vs. K NARASNNHA RAO

JUDGEMENT

(1.) This is a petition filed to quash the order of the XVII Metropolitan Magistrate, Hyderabad, in C.C. No. 77/89 recalling the Non-Bailable warrant issued against the respondent under Sec. 70(2) of the Criminal Procedure Code.

(2.) The brief facts of the case are: The petitioner herein filed a private complaint against the respondent alleging that the Respondent kidnapped him with the aid and asistance of some others, kept him in illegal custody for over one week and therefore liable for punishment under Sections 324, 395, 379, 343, 365, 367 and 368 I.P.C. The Magistrate took cognizance of the offence and since the process could not be served, the N.B.W. was issued by the Magistrate against the respondent for execution through an Advocate-Commissioner. However, the Advocate-Commissioner returned the N.B.W. on 3-8-1989 unexecuted. While so on 4-8-89 the respondent appeared before the Court and filed a petition, to recall the N.B.W. which was ordered. It is this order of recalling the N.B.W., that is questioned in these proceedings under Sec. 482 Cr.P.C.

(3.) The contention of the learned counsel for the petitioner is that the Magistrate having taken cognizance of the offence triable by a Sessions Court, has no jurisdiction to recall the N.B.W., issued and that he has alone to commit the accused to judicial custody, and that if at all the accused could move the Sessions Court for bail under Sec. 437 Cr.P.C. The learned counsel for the respondent-Accused, on the other hand, contended that the Magistrate in appropriate cases has power to recall the N.B.W. issued by him. Even if there is no power, to recall the N.B.W., he submitted, the Magistrate could release the accused on bail under Section 437 Cr.P.C.