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2000 DIGILAW 274 (ORI)

NARESH KUMAR JAIN v. STATE OF ORISSA

2000-05-12

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - On the prayer of the Investigating Officer on 12.10.1998, learned S.D.J.M: passed the impugned order directing issue of N.B.W.A., proclamation as provided in Section 82 of the' Code of Criminal procedure, 1973 (in short 'the Code') and also order of attachment u/s 83 of the Code which is under challenge in this application u/s 482 of the Code filed by one of the accused-cum-alleged absconder in G.R. Case No. 320 of 1997 of the Court of S.D.J.M. Titilagarh. 2. Facts which are not in dispute is that on 20. 12. 1997 F.I.R., Annexure-l was lodged by the steno to Sub-Collector, Titilagarh, regarding riotous conduct of the miscreants in entering into the office of the Sub Collector and ranting and ransacking the whole office and in the process damaging and removing the public properties like official file, furniture and typewriters etc. besides endangering human life and property in that process. Accordingly, Titilagarh P.S. Case No. 130 of 1997 was registered for the alleged offences under Sections 147,336,454,427,380,353,506/149 I.P.C., Section 7 Criminal Law (Amendment) Act and Section 54 Prevention of Damage to Public Property Act, 1984. During the course of investigation the Investigating Officer filed an application to issue nonbailable warrant of arrest against six absconding accused persons. Petitioner was described as one of such absconding accused persons. Prayer was also made to issue proclamation for persons absconding and also for attachment of their property,in accordance with the provisions under Sections 82 and 83 of the Code respectively. Learned S.D.J.M. on 12.10.1998, vide the impugned order, allowed the prayer of the Investigating Officer and the Petitioner challenges legality of that order. 3. Since the Petitioner desired consideration of the legal lacuna in that order, no factual verification was required to be made so the lower Court record was not called for. At the time of hearing, Petitioner even did not file a copy of the petition which was filed by the Investigating Officer in the Court of S.D.J.M. 4. Mr. 3. Since the Petitioner desired consideration of the legal lacuna in that order, no factual verification was required to be made so the lower Court record was not called for. At the time of hearing, Petitioner even did not file a copy of the petition which was filed by the Investigating Officer in the Court of S.D.J.M. 4. Mr. D.P. Dhal, learned Counsel arguing for the Petitioner at first contended that, it was not within the domain of learned S.D.J.M. to issue nonmalleable warrant of arrest by exercising the power u/s 73 of the Code when the investigation was still under process and progress and in that respect heavily relied on certain observation recorded by a Division Bench of Bombay High Court in the case of Mohamad Ahmed Yasin Mansuri Vs. State of Maharashtra. However, a later stage he fairly conceded that in view of the ratio in the case of State through C.B.I. Vs. Dawood Ibrahim Kaskar and others, warrant of arrest u/s 73 of the Code can be issued by the Magistrate during pendency of investigation. Hence no further deliberation is necessary to decide the said question of law. 5. Mr. Dhal further argued that learned S.D.J.M. exercised the power under Sections 82 and 83 of the Code most mechanically and without due application of mind. In that connection, he stated that a proclamation has to be issued u/s 82 if the concerned Court has reason to believe that any person against whom a warrant has been issued by it is absconding or concealing himself so that such warrant cannot be executed and only in that event, order should be passed to publish a written proclamation requiring the absconder to appear in the manner provided in that provision of law. He further argued that the order of attachment in accordance with the provision u/s 83 could not have been issued simultaneously with the proclamation u/s 82 of the Code. Learned Counsel appearing for the State while not conceding to the aforesaid legal position, however, concedes that learned S.D.J.M. has passed the order without due application of mind. 6. He further argued that the order of attachment in accordance with the provision u/s 83 could not have been issued simultaneously with the proclamation u/s 82 of the Code. Learned Counsel appearing for the State while not conceding to the aforesaid legal position, however, concedes that learned S.D.J.M. has passed the order without due application of mind. 6. It appears from the impugned order that learned Magistrate passed the order under Sections 82 and 83 Code of Criminal Procedure, by non-speaking order i.e., to say, without mentioning the grounds on which the Investigating Officer sought for the indulgence of the Court for issue of processes under Sections 82 and 83 of the Code along with order for Non Boilable Warrant of Arrest. Learned S.D.J.M. also did not record any reason of belief that the warrant which was issued by him could not be executed because of any conduct of the Petitioner. Therefore, the aforesaid order under Sections 82 and 83 Code of Criminal Procedure is found to have been passed without due application of mind and accordingly set aside. 7. Since the Petitioner is aware of the fact that for his appearance in G.R. Case No. 320 of 1997' the Investigating Agency had taken all the aforesaid steps, therefore, the Petitioner is directed to surrender in the Court of the S.D.J.M. within a period of 15 days hence, failing which, learned S.D.J.M. shall pass a fresh order in accordance with the provision under Sections 82 and 83 of the Code treating the Petitioner's default in appearance as the reason to believe the Petitioner's absconding and avoiding to attend the Court and in that event, the I.I.C. Titilagarh Police-station shall execute such processes with in a period of 15 days from the date of its receipt from the Court of S.D.J.M. Besides taking steps for apprehending the Petitioner. In the event Petitioner shall surrender in the manner indicated above, and if he shall apply for bail, learned S.D.J.,M. may do well to hear and dispose of the same in accordance with law but expeditiously. 8. In view of the aforesaid findings and orders, the processes issued under Sections 82 and 83 of the Code are set aside for the present but the same be issued afresh in the manner indicated above if Petitioner shall default in appearance within the time fixed. 8. In view of the aforesaid findings and orders, the processes issued under Sections 82 and 83 of the Code are set aside for the present but the same be issued afresh in the manner indicated above if Petitioner shall default in appearance within the time fixed. Till expiry of a period of 15 days hence the Non-Bailable Warrant of Arrest issued against the Petitioner shall not be executed. 9. The Criminal Misc. case is disposed of accordingly.