Chandigarh

StateCommission

RP/3/2023

Ashish Mohan Gupta - Complainant(s)

Versus

O.P. Dabla - Opp.Party(s)

Vikas Kuthiala Adv.

15 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

Revision Petition No.	:	RP/03/2023
In Exe. Application No.	:	EA/132/2019
In Consumer Complaint No.	:	CC/144/2016
Date  of  Institution	:	06/02/2023
Date   of   Decision	:	15/02/2023

 

 

 

 

 

 

Ashish Mohan Gupta S/o Late Sh.Chander Mohan Gupta, Resident of House No. 161, Sector 27-A,Chandigarh.

….Revision Petitioner

 

Vs.

 

1]    O.P. Dabla son of Late Hari Singh, Resident of House No. 238, Sector 20-A, Chandigarh.

 

2]    Hind Motors (India) Limited, Industrial Area, 9, Phase-I, Chandigarh, through Sh. Krishan Vrind Jain, Liquidator at SCO No. 345-346, 2^nd Floor, Sector 35-B, Chandigarh.

…. Respondents

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT

:

Sh. Vikas Kuthiala, Advocate for Revision Petitioner.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

1.         This Revision Petition is directed against the order dated 20.01.2023, passed by the Ld. District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (for brevity, ‘Ld. Lower Commission), whereby application moved by the Revision Petitioner/Judgment Debtor seeking exemption from personal appearance, was rejected, with cost and non-bailable warrants of arrest were ordered to be issued.  For the sake of precision, the said order of the Ld. Lower Commission is reproduced hereinbelow:-

          “Calculation sheet has been filed by Complainant. It be taken on record. 

          An application for exemption from personal appearance of JD – Ashish M. Gupta has been moved.

          The order under execution has not yet been complied with by JD. The execution is pending since 2019. Hence, the exemption from personal appearance cannot be granted to JD. Therefore, the exemption application is rejected with cost of Rs.1,000/-. Office is directed to issue non-bailable warrants of arrest of JD(s) for 09.02.2023.” 

 

2.          We have heard the Learned Counsel for the Revision Petitioner and have gone through the record of the case with utmost care & circumspection.

 

3.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Revision Petition is liable to be accepted for the reasons to be recorded hereinafter.

 

4.         A non-bailable warrant issued by the Court is nothing, but a process under Chapter VI of the Code of Criminal Procedure, to secure the presence of the accused in Court. Non-bailable warrants are usually issued in cases where the accused has showed signs of absconding or the presence of the accused person cannot be secured. It is borne on record the Petitioner has been represented by his Counsel throughout. Record transpires that it was on 10.01.2023, the Ld. Lower Commission directed the Petitioner either to comply with the order or to be present on every date of hearing and the matter was adjourned to 20.01.2023. However, on 20.01.2023, the petitioner filed an application seeking dispensation of his presence on that day for the reasons slated in the application.

 

5.         Indeed, by doing so, the Petitioner has proved his bonafide by filing an application seeking exemption of his personal appearance on the date fixed 20.01.2023 explaining the reasons therefor. To our mind, there was no occasion for the Ld. Lower Commission to resort to the issuance of the non-bailable warrant of arrest for 09.02.2023 against the Petitioner, especially when the petitioner filed an application seeking exemption of his presence on 20.01.2023, with an undertaking to appear in person on the next date to be fixed by the Ld. Lower Commission. Instead of allowing the application, the Ld. Lower Commission not only dismissed the application with cost, but also even without giving time for his appearance issued non-bailable warrants, which was not warranted at all in the facts and circumstances of the case.

 

6.         As regards the issuance of non-bailable warrants, the discretion vested in Ld. Lower Commission should be exercised judiciously with extreme care and caution to secure the ends of justice. Hence this Commission would like to emphasize that such warrants cannot be issued mechanically, without giving an opportunity to explain the circumstances under which the accused failed to appear in the Court and in the light of the language employed in section 73 of Criminal Procedure Code a non-bailable warrant can be issued sparingly that too after coming to the conclusion that there is no other way to secure the presence of the accused. Hence, interference of this Commission is very much warranted. In our view, there were sufficient reasons which entitle the Petitioner for exemption from personal appearance. Therefore, the impugned order dated 20.01.2023 rejecting the application for exemption from personal appearance and issuance of non-bailable warrants, especially when the application contain an undertaking to appear in person on the next date to be fixed by the Ld. Lower Commission, is liable to be set-aside.  

 

7.         No other point was urged by the Counsel for the Revision Petitioner.

 

8.         In the wake of the position, as sketched out above, the Revision Petition is allowed. The impugned order dated 20.01.2023 passed by the Ld. Lower Commission is quashed and set-aside. However, in the facts and circumstances of the case, there shall be no order as to costs.

 

9.         The Ld. Lower Commission shall recall back the non-bailable warrants, if issued by it, unexecuted at once.

 

10.         Petitioner is directed to appear before the Ld. Lower Commission on the date already fixed i.e. 03.03.2023.

 

11.         Complete record be sent back to the Ld. Lower Commission along with certified copy of this order, so as to reach there before the date fixed.

 

12.         Pending application(s), if any, also stands disposed of accordingly in aforesaid terms.

 

13.         Certified Copies of this order be sent to the parties, free of charge.

 

14.         The file be consigned to Record Room, after completion.

Pronounced

15^th February, 2023                                                                   

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”