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1999 DIGILAW 209 (ORI)

SANTANU KR. PARIDA v. STATE OF ORISSA

1999-07-06

P.K.MISRA

body1999
JUDGMENT : P.K. Misra, J. - The accused-petitioner has filed this application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C") for quashing a criminal proceeding numbered as G.R. Case No. 1394/98 pending before the Sub-Divisional Judicial Magistrate, Puri, under the following circumstances : 2. It appears that the aforesaid G.R. case was registered on the basis of FIR lodged by one Subal Jena alleging commission of offences Under Sections 279 and 337, Indian Penal Code (in short, the "IPC"). Alter investigation, charge-sheet was filed and the Sub-Divisional Judicial Magistrate, Puri, took cognizance against the present petitioner on 6.2.1989 and issued summons against the petitioner. From the order-sheet it appears that the summons issued on several dates remained unserved and the service returns did not come on many occasions. Ultimately the Magistrate issued bailable warrant which also remained unexecuted and thereafter Non-Bailable Warrant was issued which was again not executed and the Court issued coercive process Under Sections 82 and 83, Cr.P.C. At that stage, the present petitioner appeared through his lawyers and filed application u/s 205, Cr.P.C. for dispensing with the personal attendance and for recalling the N.B.W. and the process issued Under Sections 82 and 83. Cr.P.C. The said application was rejected on 19.3.1996 on the ground that the petitioner having been released on bail by the police must have been aware of the pendency of the case and as such his absence for such long period could not be condoned. The prayer for dispensing with personal appearance of the petitioner u/s 205(1), Cr.P.C. was also rejected on the ground that N.B.W. having been already issued, there is no scope for invoking power u/s 205. It was further directed that the petitioner should appear on the next date so that the bail application can be considered in the back-ground of long delay in responding to the process of the Court. After the aforesaid order was passed, the petitioner has filed this application u/s 482, Cr.P.C. for quashing the criminal proceeding mainly on the ground of undue delay in disposal of the criminal case. 3. In support of the application, the petitioner has relied upon the decision of the Supreme Court reported in 7996 (I) OLR 584 (SC) ("Common Cause" A Registered Society through its Director v. Union of India and Ors.). 3. In support of the application, the petitioner has relied upon the decision of the Supreme Court reported in 7996 (I) OLR 584 (SC) ("Common Cause" A Registered Society through its Director v. Union of India and Ors.). The learned counsel for the petitioner has alternatively submitted that in case the proceeding is not quashed, the personal appearance of the petitioner should be dispensed with. 4. On perusal of the records, it appears that the summons issued by the trial Court from time to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non-bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps u/s 82, Cr.P.C. the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub-Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had. in fact, absconded or concealed. Since there was no justification for taking steps u/s 82, there was no scope for invoking the power u/s 83, Cr.P.C. and as such the action of the Sub-Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustained. 5. The Magistrate rejected the application u/s 205, Cr.P.C. on the ground that N.B.W. having been issued and other coercive measures having been taken, there was no scope for invoking jurisdiction u/s 205(1), Cr.P.C. Even though the power u/s 205(1) is expected to be exercised at the stage of issuing summons, there is no bar for invoking such power at such subsequent stage. This becomes apparent by reading Section 205(1) together with Sections 273 and 317, Cr.P.C. This also seems to be the settled position of law so far as this Court is concerned, as apparent from several decisions of this Court. This becomes apparent by reading Section 205(1) together with Sections 273 and 317, Cr.P.C. This also seems to be the settled position of law so far as this Court is concerned, as apparent from several decisions of this Court. As such, the rejection of the application u/s 205(1), Cr.P.C. appears to be unsustainable. 6. As already indicated, the learned counsel for the petitioner has banked heavily upon the decision of the Supreme Court reported in 1996 (I) OLR 584 (SC) and prayed for quashing the criminal proceeding. Instead of considering this aspect, I think it would be more appropriate to direct the petitioner to file an appropriate application before the Sub-Divisional Judicial Magistrate for recalling the order taking cognizance or for dropping the criminal proceeding and if such an application is filed, the same should be considered by the Sub-Divisional Judicial Magistrate in accordance with law keeping in view the principles enunciated by the Supreme Court in the decisions reported in (1992) 5 OCR 66 (SC) (K.M. Mathew v. State of Kerala and Anr.) and 1996 (I) OLR 584 (SC) (supra). For the aforesaid purpose, the petitioner shall appear before the Sub-Divisional Judicial Magistrate on or before 31st July, 1999, and if any application for bail is filed, the petitioner shall be released on bail of Rs. 10,000/- (ten thousand) with one surety for the like amount to the satisfaction of the Magistrate. If on consideration of the application, the Sub-Divisional Judicial Magistrate decides to proceed with the case, he shall re-consider the application u/s 205(1), Cr.P.C. Needless to point out that rejection of earlier petition would not stand as a bar for considering the question of applicability of Section 205(1), Cr.P.C. 7. Subject to the aforesaid observations, the Criminal Misc. Case is disposed of.