Orissa High Court
Pramod Kumar Patnaik vs State Of Orissa on 31 March, 1995
Equivalent citations: 1995CRILJ3573
ORDER B.N. Dash, J.
1. The sole point for consideration in this revision is whether a Judicial Officer in charge of the Court of the Chief Judicial Magistrate can order issuance of non-bailable warrant of arrest against an status in a case pending in that Court.
2. The facts giving rise to the filing of the petition are within a narrow . They may as stated thus :- The petitioner was facing trial in G. R. Case No. 253 of 1988 for an offence under Section 489, I.P.C. in the Court of the Chief Judicial Magistrates, Juypors and during that period he was on bail. After examination of some prosecution witnesses the said case has been adjurned to 3.12-1993 for further trial, in the meantime the learned Chief Judicial Magistrate having been transferred. This Court fall vacant and one S.Ch. Tripathy, obviously a Judicial Officer remained in-charge of that Court. While he was in charge, on the aforesaid date of further trial i.e. 3-12-1993, the petitioner failed to appear, as alleged by him, on the ground of his sudden illness and, therefore, Mr. S.Ch. Tripathy in-charge of that Court passed the following order:-
"Accused is absent on calls. No step taken by the defence counsel. No. P. 8 has been posted. Issue A. 8. We against the accused and also notice the bailers fixing 8-1-84 for production of the accused."
Being aggrieved by the order directing issuance of non-bailable warrant of arrest against him, the petitioner has filed this revisions.
3. It is contended by Mr. S. K. Nayak for the petitioner that since G. R. Case No. 253 of 1988 was pending in the Court of the Chief-Judicial Magistrate, Jaypore, it was the Chief Judicial Magistrate alone who was competent to pass order for issuance of non-bailable warrant of arrest against the accused and not any Judicial Officer in-charge of that Court because the officer in-charge of the Court cannot be said to be the presiding officer of that Court who alone is empowered to order issuance of a non-bailable warrant of arrest against an accused for his default in appearing in Court. In support of his contention, he relies on Section 89 of the Code of Criminal Procedure, 1973 (for short, 'the Code') which is as under:-
"89. Arrest on breach of bond for appearance - when any person who is bound by any bond taken under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrent directing that such person be arrested and produced before him." Mr. G. Kr. Mohanty (I) who has been appointed as amicus curiae is the Court on the point of law required to be adjudicated has also supported the contention raised by Mr. Nayak. The learned Addl. Govt. Advocates has submitted that in the absence of a presiding officer of a Court, the officer directed by the competent authority to remain in-charge of that Court is liable to be treated as presiding officer of that Court, but he is unable to cite any authority in support of his contention.
4. The language of Section 45 of the case quoted above is quite clear enough and does not admit any ambiguity. A plain reading of the section means that if a person who has executed a bond under the Code to appear before a Court falls to appear in large of that bond, the only officer empowered to issue a warrant for his arrest and production is the presiding officer of the Court. Section 70 of the Code deals with form of warrant of arrest and duration and it says that every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court it shall remain in force until it is cancelled by the Court which issued it, or until it is executed. All these clearly go to some what the authority to direct issuance of warrant is the presiding officer of the Court and the warrant it also required to be signed by him. The expression "presiding officer" has not been defined in the Code. Section 11 of the Code dealt with Courts of Judicial Magistrates and Sub-section (2) thereof says that the presiding officers of such Courts shall be appointed by the High Court. Section 12 of the Code deals with Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. and it says, inter alia, that the Chief Judicial Magistrate and the Additional Chief Judicial Magistrate are to be appointed by the High Court. Since Mr. G. Ch. Tripathy was admittedly not appointed as Chief Judicial Magistrate, Jaypore, he was not the successor to the Chief Judicial Magistrate, in whose Court the case in question was pending and who had been transferred. A presiding officer of a Court has to perform many functions including the trial of the cases pending in his Court, A Judicial Officer remaining in-charge of the Court of the Chief Judicial Magistrate can never try the cases pending in that Court unless such officer is empowered to try those cases and those cases are transferred to his Court by the competent authority. That being so, in my opinion, a Judicial Officer remaining in-charge of another Court can never be said to be the presiding officer of that Court and as such, in terms of Section 89 of the Code he is incompetent to pass order for issuance of warrant of arrest against an accused in a case pending in that Court/
5. My attention has been invited to Kartik Chandra Haity v. Emperor, AIR 1932 Patna 171. That was a case under the Old Cr. P. C. In that case the facts were that there were two Magistrate at sub-divisional headquarters with identical powers in the matter of taking cognizance of offence on complaints and of issue of warrants under Section 204. The case was pending in the Court of one of the Magistrate who passed orders directing issuance of warrant but during his absence the warrant case to be signed by the other Magistrate. When such a warrant was sought to be executed, a police officer was assulted and, therefore, a case was instituted against the alleged assailants. The question for consideration was whether the warrant was a valid warrant. When there was difference of opinion, the matter was referred to a third Judge. The majority decisions was as follows :-
"where there are two Magistrates at the sub- divisional headquarters with identical powers in the matter of taking cognizance of offences on complaints and in the matter of issue of warrants under Section 204 in the absence of either from the headquarters the remaining one is a presiding officer for the purpose of Section 95 and can high for the other warrants issued under the latter's direction."
(Quoted from the placitun) The dissenting judgment of Dhavle, J. is as under :-
"The Legislature does not intend to permit a delegation of the duty of signing warrants. Conse-quently the warrant signed not by the Magistrate taking cognizance of the case but by another Magistrate 'for S.D.O.' who is the presiding Magistrate, in invalid. The absence of the S.D.O. on tour does not confer on another Magistrate the authority that the S.D.O. had under Section 204 as the Magistrate taking cognizance of the offence to issue warrant."
The point decided in that case is not similar to one at hand because in that case it was not decided as to whether the Judicial Officer in-charge of another Court can pass orders directing issuance of warrant against the accused in a case pending in that Court.
6. On the aforesaid analysis, the revision is allowed but it is not necessary to pass further orders because the petitioner has already entered appearance and the trial of the case against him has already proceeded.