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2008 DIGILAW 231 (ORI)

Dipti Ranjan Parida v. State of Orissa

2008-03-20

M.M.DAS

body2008
ORDER :- Heard learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner calls in question the order dated 10.5.2007 passed by the learned S.D.J.M., Nayagarh in G.R. Case No. 275 of 2006 arising out of Nayagarh P.S. Case No. 162 of 2006. 3. Before submission of the charge sheet and on the prayer of the I.O., the learned S.D.J.M. has issued N.B.W. against the petitioner and another co-accused, by passing the impugned order which is as under :- " Order No. 11 dated 10.5.2007 The case record is put up today as the I.O. of this case prayed to issue N.B.W. against the absconding accused persons Nilu Parida and Dilu Parida both S/o. Rama Parida of will : Gotisahi, P.S. Sarankul, Dist : Nayagarh. The I.O. has also furnished the case diary along with injury report and statements under Section 161 Cr.P.C. Perused the same. The prayer of I.O. is allowed in part. Issue N.B.W. against the above noted absconding accused persons and put up on 8.6.07 for receipt of F.F." 4. Mr. Ganeswar Rath, learned counsel appearing for the petitioner submits that the other co-accused, namely, Litu @ Pritiranjan Parida pursuant to N.B.W. issued, 'was apprehended and produced before the court below and has been ultimately released on bail. He further submits that absolutely no reason, whatsoever, has been assigned by the learned S.D.J.M., Nayagarh, while accepting the prayer of the I.O. and while issuing the N.B.W. against the petitioner even though the matter was under investigation and no charge sheet has yet been filed. 5. The above quoted impugned order appears to have been passed by the learned S.D.J.M. by exercising the power under Section 73 of the Cr.P.C. Section 73 of the Code reads as follows :- "73. Warrant may be directed to any reason- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a Warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71." 6. It is clear from the above provision that a Magistrate of the First Class may direct a warrant to any person within his local jurisdiction for arrest of any escaped convict proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. The first two criteria, i.e., "escaped convict" and "proclaimed offender" do not apply to the acts of the case. It, therefore, appears that the learned Magistrate passed the impugned order directing issuance of N.B.W. against the petitioner by exercising his jurisdiction under the above provision taking the petitioner to be a person, who is evading arrest. 7. It appears that though the learned S.D.J.M. has stated that the I.O. furnished the case diary along with the injury report and the statement under Section 161 Cr.P.C., which was perused by me, but nothing has been mentioned in the said order as to why the learned S.D.J.M. was satisfied that the petitioner and the other co-accused should be held to be evading arrest? 8. A bare perusal of the order dated 10.5.2007 goes to show that the learned S.D.J.M. has mechanically, accepted the prayer of the I.O. for issuing, N.B.W. against two accused persons. It is. naive to state that in a judicial order, it is necessary for the court to assign reasons for the conclusion arrived at. As has been held by the Supreme Court, reasons introduce clarity in an order. Reasons are the heartbeat of every conclusion and without the same it becomes lifeless. Failure to give reason amounts to denial of justice. Reasons are the life links between the mind of the decision taker to the decision or conclusion arrived at - they substitute subjectivity by objectivity. Right to reason is an indispensable part of sound judicial system. Reasons are the heartbeat of every conclusion and without the same it becomes lifeless. Failure to give reason amounts to denial of justice. Reasons are the life links between the mind of the decision taker to the decision or conclusion arrived at - they substitute subjectivity by objectivity. Right to reason is an indispensable part of sound judicial system. Another rationale is that the affected party can know why the decision has gone against him : [See (2004) 5 SCC 568 (sic) 9. Hence, I allow this application and quash the order dated 10.5.2007 so far as it relates to issuance of N.B.W. against the petitioner. However, since the petitioner has not yet surrendered before the learned court below and is before this Court in the present application, he is directed to surrender before the court below within a period of two weeks from today and on such surrendering, he may move for bail, if so advised. If such an application is filed, since the co-accused has already been released on bail, the petitioner shall be released on bail on the same terms and conditions as have been imposed on the other co-accused by the learned S.D.J.M. 10. Urgent certified copy of this order be granted on proper application. Application allowed.