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1999 DIGILAW 741 (RAJ)

Bashir v. Saib Ram

1999-05-25

AMARESH KUMAR SINGH

body1999
JUDGMENT 1. - Heard the learned counsel for the petitioner. 2. By this revision petition the petitioner has challenged the order dated 3.5.1999 passed by the learned Addl. Civil Judge (SD)/Addl. Chief Judicial Magistrate, Makrana. By the aforesaid order the petitioner was granted time for producing evidence subject to payment of Rs. 250 as cost and it was further ordered that standing warrants be issued to the accused persons and if they are posted within the district of Nagaur, a letter be addressed to the Superintendent of Police, Nagaur for attachment of their salaries under Section 82-83 of the Cr.RC. The learned Addl. Chief Judicial Magistrate by the aforesaid order adjourned the case to 10th May, 1999 for the recording the evidence. 3. In view of the above facts and circumstances I deem it fit to direct a notice to be given to the learned P.R who is present in the Court. Copy of the petition was given to the learned RP. 4. Heard the learned counsel for the petitioner and learned RR with a view to finally dispose off this revision petition. 5. The order dated 3rd May, 1999 whereby the complainant was granted time for production of his evidence subject to payment of cost of Rs. 250 does not appear to be in accordance with law. So long the accused persons against whom summons/warrants of arrest have been issued under Section 204 of Cr.RC. do not appear in the Court or an order under Section 299 Cr.RC. is passed against them, the complainant should not be called upon to produce his evidence. In the instant case, it appears that some of the accused persons against whom summons/warrants of arrest were issued under Section 204 Cr.RC. by the learned Civil Judge (SD) Additional Chief Judicial Magistrate, Makrana have not appeared in the Court. It does not appear that any order under Section 299 Cr.RC. has been passed in respect of accused persons who have not appeared before the Court. In the circumstances, the case could not have been listed for recording the evidence of the prosecution witnesses. The impugned order dated 3rd May, 1999 therefore, deserves to be quashed, so far as by this order the learned Additional Chief Judicial Magistrate has by necessary implication directed the case to be listed for recording the statement of the witnesses. 6. In the circumstances, the case could not have been listed for recording the evidence of the prosecution witnesses. The impugned order dated 3rd May, 1999 therefore, deserves to be quashed, so far as by this order the learned Additional Chief Judicial Magistrate has by necessary implication directed the case to be listed for recording the statement of the witnesses. 6. The impugned order further shows that the learned Additional Chief Judicial Magistrate has given a direction for attachment of the salary of the accused persons who are not appearing before the Court. It does not appear that any proclamation has been issued by the learned Additional Chief Judicial Magistrate, Makrana as required by Section 82 of the Cr.RC. In the absence of proclamation under Section 82 of the Cr.RC. the power to attach the property of the person reported to be absconding cannot be exercised. Therefore, the order for attachment of the salary of the accused person cannot be allowed to stand. It deserves to be quashed and is hereby quashed and set-aside. 7. So far as the issue of standing order of arrest against the accused persons who are not appearing before the learned Additional Chief Judicial Magistrate is concerned that order does not suffer from any legal infirmity. Therefore the impugned order dated 3rd May, 1999, the standing order of arrest against the accused persons is hereby maintained. 8. In the instant case, it is directed that the learned Chief Judicial Magistrate, Makrana shall direct the issue of warrant of arrest against the accused persons who are not appearing before him. The warrant shall be sent to a responsible police officer for execution. It is further directed that the police officer executing the arrest of the accused persons shall take all necessary legal steps for prompt and due execution of the warrants of arrest of the accused, tailing which he shall be deemed to be guilty of contempt of this Court. If the police officer entrusted with execution of warrant of arrest does not comply with the directions given by this Court, the learned Additional Chief Judicial Magistrate, Makrana shall bring the disobedience of this Court to this Court so that necessary action can be taken against the guilty police officers. 9. If the police officer entrusted with execution of warrant of arrest does not comply with the directions given by this Court, the learned Additional Chief Judicial Magistrate, Makrana shall bring the disobedience of this Court to this Court so that necessary action can be taken against the guilty police officers. 9. It is further directed that before fixing the case for recording the evidence of the prosecution witnesses the learned Chief Judicial Magistrate shall take all legal steps for enforcing the attendance of the accused persons and if necessary pass suitable order under Section 229 of the Cr.RC. in respect of accused persons whose warrants of arrest are not executed in spite of the best efforts by the executing officer. 10. The petition is partly allowed and disposed off in terms of the directions given abcve.Revision partly allowed and petition disposed of as above. *******