Order 2

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Capt. Ali Mukarram Surury V/s. Naved Ahmed Khan Case No. 350/SC/2024
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ORDER BELOW EXH. 46 IN C. C. NO. 350/SC/2024
(CNR No. MHMM150015242024)
01. Perused the application filed on behalf of
Ld. Advocate of the accused for cancellation of NBW in absence
of accused.
02. It is contended that, on 30.03.2026 the accused
could not remain present due to medical emergency at
Hyderabad. The Advocate of accused was present before this
Court. The warrant was issued against the accused. On
30.04.2026 the accused was present before this Court for
cancellation of warrant through taking the matter on board.
However, the application was rejected and ordered that the
accused to present on given date i.e. 03.06.2026. On 03.06.2026
the accused was present but the Court was vacant and the
matter is adjourned to 01.07.2026. Due to heavy rain the
accused is not in position to present before this Court today. The
Ld. Advocate of accused is present. The absence of accused
neither deliberate nor intentional. Hence, prays that the
application be allowed.
03. When the matter was called out the Ld. Advocate of
accused not present. On the contrary, the complainant and the
Ld. Advocate for complainant present and filed application for
issuance of fresh warrant against the accused. Then after at
about 12.30 p.m. the Ld. Advocate for accused appeared and
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Capt. Ali Mukarram Surury V/s. Naved Ahmed Khan Case No. 350/SC/2024
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filed this application. On perusal of record shows that in the
present matter after recording plea the accused never appeared
nor his Ld. Advocate appeared on time, hence, the warrant was
issued against the accused. Before this application on
17.01.2026 and 29.01.2026 the accused filed application for
cancellation of NBW in absence of accused which was rejected.
In view of order dated 10.12.2025 the accused was directed to
remain present before the Court. Though it is contended that the
accused was present on 03.06.2026 but the Court was vacant.
But on perusal of roznama of dated 03.06.2026 it never reveals
that the accused was present nor he made any application for
cancellation of warrant which can be put before the In-charge
Court. The conduct of the accused shows that he does not want
to present before the Court and always used to file application
for cancellation of warrant in absence which is not proper. At
this stage it is necessary to take reference of the judgment on
which the Ld. Advocate of accused placed reliance in case of
TGN Kumar V/s. State of Kerala and Ors. 2011 LawSuit (SC) 35,
in which the Hon’ble Supreme Court has also reaffirm that “the
satisfaction whether or not an accused deserves to be exempted
from personal attendance has to be of the Magistrate, who is the
master of the court in so far as the progress of the trial is
concerned and none else”.
04. Keeping in mind the observation made by the
Hon’ble Supreme Court in the above-mentioned citation.
Considering the facts of the present case, the evidence of
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Capt. Ali Mukarram Surury V/s. Naved Ahmed Khan Case No. 350/SC/2024
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complainant is on record and the documents are exhibited and it
is for additional evidence of complainant and cross-examination.
As the accused is absent hence warrant is pending against the
accused since long which are never executed. Considering this if
the application is allowed it will cause prejudice to the
complainant. Hence, I do not find it proper to cancel the warrant
in absence of accused. In view I pass the following order :
ORDER
Application Exh. 46 is rejected.
Sd/-
(M. R. Dhanorkar)
Judicial Magistrate First Class,
Date : 01.07.2026 7th Court, Dadar, Mumbai
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