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Coram: Hon'ble Mr. Justice Ananda Sen ......

        For the Petitioner            : Mr. R.S.Mazumdar, Sr. Advocate
        For the State                 : Mrs. Vipul Divya, A.P.P.
        For O.P. No. 2                : Md. Asadul Haque, Advocate
                                ......

6/28.11.2019     The petitioner, in this application, has challenged the order dated

27.06.2013, by which the process under Sections 82 & 83 Cr.P.C. has been issued. He also challenged the order dated 16.11.2017, whereby permanent warrant of arrest was issued against the petitioner and further he has challenged the order dated 15.09.2018, whereby he has been declared as an absconder.

2. Learned counsel appearing for the petitioner submits that without execution report of the non-bailable warrant of arrest, the process under Sections 82 & 83 Cr. P.C. has been issued simultaneously. He submits that this order dated 27.06.2013 shows non-application of mind and does not even reflect subjective satisfaction of the Court, which is mandatory while issuing process under Sections 82 & 83 Cr.P.C. He submits that this order dated 27.06.2013 is absolutely bad and needs to be set aside.

So far as challenge of the order dated 16.11.2017 is concerned, he submits that the said order is also bad on the same aforesaid ground. He lastly submits that if these two orders, i.e. the order dated 27.06.2013 and 16.11.2017 are set aside, consequently, the order dated 15.09.2018, i.e. the order under Section 299 Cr. P.C. against this petitioner, be also set aside.

3. Learned counsel appearing on behalf of O.P. No. 2 submits that it was well within the knowledge of the petitioner about the proceeding and he voluntarily chose not to appear before the Court, thus, the Court has issued non-bailable warrant of arrest against the petitioner. He submits that the bailers were also noticed and they had given undertaking that the petitioner will be produce but they also did not produce the petitioner, which resulted in issuing non-bailable warrant of arrest. He admits that the execution report of non-bailable warrant of arrest was not before the Court when the process was issued in terms of Sections 82 & 83 Cr.P.C.

4. After hearing the parties and after going through the records and especially the order dated 27.06.2013, I find that there is nothing in the said order to suggest that the execution report was available before the court below while issuing process under Sections 82 & 83 Cr.P.C. and on the same date process under Sections 82 & 83 Cr.P.C. was issued by the Court.

5. There is no legal bar in issuing process under Sections 82 & 83 Cr.P.C. on the same day, but satisfaction has to be recorded by the Court as provided in the proviso of Sections 83 Cr.P.C. While going through the order I find that no subjective satisfaction has been recorded by the court while passing the order under Sections 82 & 83 Cr.P.C. In a most mechanical manner, since non-bailable warrant of arrest was already issued, this process under Sections 82 & 83 Cr.P.C. has been issued by the Court. This is not the requirement of law. Thus the order dated 27.06.2013, being cryptic and as it does not reflect the subjective satisfaction and does not conform to the provision of the Code of Criminal Procedure, is hereby set aside.