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2003 DIGILAW 26 (PAT)

Sushil Kumar Srivastava v. State Of Bihar

2003-01-09

INDU PRABHA SINGH

body2003
Judgment 1. This application has been filed for quashing the order dated 10.10.2002 passed by the learned Chief Judicial Magistrate, Siwan in Barharia P.S. Case No. 99 of 2002 by which the learned Magistrate has been pleased to issue processes against all the accused persons under sections 82 and 83 of the Code of Criminal Procedure (in short the Code) so far as it relates to the petitioner. 2. Learned counsel appearing on behalf of the petitioner has submitted that the processes under sections 82 and 83 of the Code has been issued against the petitioner without serving the warrant of arrest, it has been further submitted that on the police requisition warrant of arrest was issued on 8.10.2002 and on 10.10.2002 only after two days processes under sections 82 and 83 of the Code was also issued. It has been further submitted that by order 8.10.2002 non-bailable warrant of arrest was issued against six non-F.i.R. accused excluding this petitioner and thereafter on 10.10.2002 it was prayed that processes under sections 82 and 83 of the Code be issued against all the accused persons. Learned counsel for the petitioner has relied on a decision reported in A.I.R. 1960 Patna 160 (Sushil Kumar Choudhary V/s.The State) in which it was held that before issuance of the processes under sections 82 and 83 of the Code the Magistrate should have waited until the execution of warrant of arrest was received. 3. Perused the impugned order. It appears that by order dated 8.10.2002 non-bailable warrant of arrest was issued against other five accused persons though from a police report, as contained in Annexure-4, it appears that the police has raided the house of the petitioner also and thereafter processes under sections 82 and 83 was issued against the F.l.R.-named accused and also against the petitioner on execution report of warrant of arrest. As -such the processes under sections 82 and 83 of the Code against this petitioner was issued without issuing the warrant of arrest and provisions of above mentioned sections has not been followed. It is evident that before issuing processes under sections 82 and 83 of the Code the learned Magistrate has to wait for execution report of warrant of arrest by the police. It is evident that before issuing processes under sections 82 and 83 of the Code the learned Magistrate has to wait for execution report of warrant of arrest by the police. A person can not only be declared absconder and his property could not be attached without issue of non-bailable warrant of arrest and he is evading his arrest by concealing himself in this case. In the present case it appears that even no warrant of arrest against this petitioner was issued, as such for the first time the processes under sections 82 and 83 of the Code is not sustainable in the eye of law. 4. Accordingly, the order dated 10.10.2002 passed by the learned Magistrate so far this petitioner is concerned is hereby quashed and this application is allowed.