Patna High Court - Orders
Shambhu Soni @ Shambhu Pd. Soni & Ors. vs State Of Bihar & Anr on 23 July, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.44731 of 2012
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1. Shambhu Soni @ Shambhu Pd. Soni Son Of Late Gobind Pd. Soni
Resident Of Mohalla Satipara, Ambikapur, P.S. Ambikapur, District-
Sarguja (Chhatisgarh)
2. Binay Kumar Soni @ Binay Prasad Son Of Late Gobind Prasad Soni
Resident Of Mohalla Satipara, Ambikapur, P.S. Ambikapur, District-
Sarguja (Chhatisgarh)
3. Manna Devi W/O Late Gobind Pd. Soni Resident Of Mohalla Satipara,
Ambikapur, P.S. Ambikapur, District- Sarguja (Chhatisgarh)
4. Simla Devi @ Smt. Simla Devi D/O Late Gobind Pd. Soni, W/O
Rameshwar Soni, Resident Of Mohalla Chief House, P.S. Chirmiri, District-
Koria (Chhatisgarh) .... Petitioners
Versus
1. The State Of Bihar
2. Soni Devi W/O Shambhu Pd. Soni, D/O Sidhnath Pd. Resident Of
Village- Kinjar, P.S. Kinjar, District- Arwal At Present C/O Shambhu Pd.
Soni, Resident Of Mohalla Satipara, Ambikapur, P.S. Ambikapur, Distt.
Sarguja (Chhatisgarh) .... Opposite Parties
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
2 23-07-2013Heard the learned counsel for the petitioner and the State.
This is a petition for quashing the order, dated 08.08.2012, passed by the Subdivisional Judicial Magistrate, Jehanabd in Complaint Case No. 489 of 2006 corresponding to Tr. No. 287 of 2012 by which the petitioner has been declared permanent absconder and warrants have been issued against him.
The learned counsel for the petitioners submits that after taking cognizance the petitioners have neither been served with summon nor any warrant of arrest ever been executed nor any report that the warrant ever executed and without any material that warrant has been executed or the petitioners had knowledge of the proceeding under Sections 82 and 83 of the Criminal Procedure Code and even without the report for the process issued the petitioners have been declared absconder and permanent warrant of arrest has been issued.
From the perusal of the order sheet, it is apparent that summon ordered to be issued after taking cognizance for offence under Sections 498A and 323 of the Penal Code and 3 and 4 of the Dowry Prohibition Act on 05.01.2007, summon ordered to be Patna High Court Cr.Misc. No.44731 of 2012 (2) dt.23-07-2013 2 issued on 20.01.20907, but, without service report the bailable warrant was ordered to be issued on 26.04.2007 and bailable warrant was issued on 19.06.2007. Without execution of warrant by order, dated 22.09.2007, non-bailable warrant was ordered to be issued and without any execution of warrant process under Sections 82 and 83 of the Criminal Procedure Code issued, simultaneously on 07.12.2007, even without any report of the publication proclamation under Section 82(2) of the Criminal Procedure Code or even without warrant of attachment of property under Section 83 of the Criminal Procedure Code has been ordered to be issued.
Hence, it is relevant to quote Sections 82, 83 and 87 of the Criminal Procedure Code.
"82 : Proclamation for person absconding - (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant can not be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) ........
(3).........
(4).........
(5).........
83 : Attachment of property of person absconding - (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable, or immovable, or both, belonging to the proclaimed person :
Provided that where at the time of the issue of the Patna High Court Cr.Misc. No.44731 of 2012 (2) dt.23-07-2013 3 proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued - (1).........
(2).........
(3).........
(4).........
(5).........
(6).........
87 : Issue of warrant in lieu of, or in addition to, summons - A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest -
(a) if, wither before the issue of such summons or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure."
From plain reading of Section 87 of the Criminal Procedure Code, it is apparent for issuance of warrant in a case where summon has been issued, the Court is required to give reason in wring that the accused has absconded or not obeying the summon or the accused has failed to appear after summon has been proved to have been duly serve. The impugned order issuing warrant has not given reason, as mentioned above.
Prior to issuance of proclamation to be published under Section 83 of the Criminal Procedure Code the Magistrate is required to give reason to believe that accused has absconded or Patna High Court Cr.Misc. No.44731 of 2012 (2) dt.23-07-2013 4 concealing himself, but, no reason given nor any material to suggest so even without any statement in writing having been recorded that proclamation duly published under Section 82(3) of the Criminal Procedure Code and without any report of attachment the permanent warrant has been issued. Hence, the learned Magistrate has proceeded most arbitrarily without any application of mind and routine order passed without observing the due process of law. Hence, the impugned order issuing permanent warrant or arrest is set aside and the petition is allowed.
However, the petitioner is directed to appear in person before the trial Court and the trial Court shall proceed in accordance with law on his appearance.
(Gopal Prasad, J) SA/-