A single judge of Madras High Court held that, the court can recall NBW without insisting upon the presence of the accused.
From paras 7-9,
S.Sundar Vs State of Tamilnadu on 02 Mar 2016
7. The learned counsel for the petitioner would submit that in this branch of law, there is march of law. Earlier, there used to be not entertaining such recall petitions when the accused was not present in the court. This conception of compulsion of the presence of accused has been departed because
of change in the judicial thinking. The fact that the accused, who is stated to have eluded has since engaged a counsel and wanted to participate in the criminal proceedings had effect on the courts.
8. The learned counsel for the petitioner would submit that without insisting upon the presence of the accused, the court can recall NBW. I hasten to add that the courts can impose certain conditions, but it should not be harsh or conditions should not be to terrorise the accused. In support of his said view, the learned counsel would cite the following decisions:
(i) VALAMPURI JOHN V. PETER JAMES [1997(2) MWN (CR.) 196
(ii) VALIULLAZ SHERIF V. STATE BY INSPECTOR OF POLICE, ALL WOMEN POLICE STATION, NELLORE [2000(3) MWN 28
(iii) SIRUGUDUGU NAGA VENKATA DURGAKUMARI V. SIRUGUDU JHANSILAKSHMI [(2007) 2 MLJ (Crl) 1668]
(iv) INDER MOHAN GOSWAMI AND ANOTHER V. STATE OF UTTARANCHAL AND OTHERS [(2007) 12 SCC 1]
9. Courts must protect the rights of the accused. But, atthe same time, the court has to see that the offenders are prosecuted. This legal philosophy could be seen as a currentjudicial thing [SANJAY CHANDRA VS.C.B.I [2012(1)SCC 40] also known as 2G scam case. While striking a balance between thesetwo extremes, cause of justice cannot be compromised. Now the fear of the petitioner is that as and when he shows his face, there is possibility of he being sent to jail. When he filesrecall petition, it is an indication that he will participate in the court proceedings. At the same time, there is fear ofpsychosis on the prosecution that the accused may put bottle necks in the administration of criminal justice. Now the law is very clear. Accused cannot be asked to present in court as acondition precedent to recall the NBW.
Index of NBW judgments here.