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2013 DIGILAW 226 (JHR)

Rajendra Kumar Gupta v. State of Jharkhand

2013-02-12

R.R.PRASAD

body2013
ORDER By the Court.-Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.2 as well as learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 12.03.2012, whereby, warrant of arrest has been ordered to be issued against the petitioner and also for quashing of the order dated 23.05.2012, and 26.06.2012. whereby, processes were ordered to be issued under Section 82 of the Cr PC as well as under Section 83 of the Cr PC respectively. 3. Mr. Tewari, learned counsel appearing for the petitioner submits that a case was registered as Dhanbad [Bank Morel P.S. Case No. 104 of 2012 larising out of Complaint Case No. 154 of 2012] for commission of the offence punishable under Sections 406. 420. 506/34 of the Indian Penal Code against the petitioner. In that case warrant of arrest was ordered to be issued on 12.03.2012. When the warrant of arrest was issued the petitioner moved to this Court for quashing of the First Information Report in a Writ Petition being W.P.[Crl.] No. 49 of 2012. The Court after hearing it at the first instance, passed an order to the effect that no coercive action shall be taken against the petitioner. However, that application got dismissed on 18.05.2012, as a result of which interim order, granting interim protection stands vacated. Upon case being dismissed, information to that effect was given by the opposite party No.2 before the Court below on 21.05.2012. Thereafter an order was passed on 23.05.2012. whereby process under Section 82 of the Cr PC was ordered to be issued against the petitioner though before issuance of the process under Section 82 of the Cr PC. no report relating to execution of the warrant of arrest had ever been submitted before the Court and thereby, the order dated 23.05.2012 becomes suite illegal. 4. Similarly an order was passed on 26.06.2012. whereby and whereunder, process under Section 830f the Cr PC was ordered to be issued without having any valid report relating to the execution of the process under Section 82 of the Cr PC. 5. 4. Similarly an order was passed on 26.06.2012. whereby and whereunder, process under Section 830f the Cr PC was ordered to be issued without having any valid report relating to the execution of the process under Section 82 of the Cr PC. 5. Learned counsel in support of his submission produced a copy of the process issued under Section 82 of the Cr PC to put-forth his point that process though is said to have been affixed over the door, but no place or time has been mentioned and on such execution report, if the process has been issued under Section 83 of the Cr PC that itself becomes bad and under these situations, the orders under which warrant of arrest, processes under Section 82 and even 83 of the Cr PC have been ordered to be issued are fit to be set aside. 6. As against this. Mr. Jerath. learned counsel appearing for the opposite party No.2 submits that the process under Section 82 of the Cr PC has been issued only after having report relating to execution of the warrant of arrest, wherein, it has been reported by the I.O. to the Court that the accused has been absconding and evading his arrest. Only in that event, the Court passed an order for issuance of the process under Section 82 of the Cr PC. on 23.05.2012. As soon as that order was passed, an application was filed on behalf of the petitioner, who though did not put his appearance before the Court, for recalling of the order under which process had been issued under Section 82 of the Cr PC. but that application was rejected and only then having report regarding execution of the process under Section 82 of the Cr PC. process under Section 83 of the Cr PC was ordered to be issued on 26.06.2012 and in such situation, particularly when the petitioner is knowing about the date and even the Court where case is pending the petitioner cannot take any advantage of the fact that necessary entries have not been made in the process under Section 82 of the Cr PC and thus, this application has got no merit and is fit to be dismissed. 7. In the facts and circumstances of the case. I do find substance in the submission advanced on behalf of the opposite party No.2. As has been noted above. 7. In the facts and circumstances of the case. I do find substance in the submission advanced on behalf of the opposite party No.2. As has been noted above. warrant of arrest had been issued on 12.03.2012, operation of which was stayed by this Court when an order was passed for not taking coercive action against the petitioner. However, application preferred by the petitioner before this Court was dismissed on 18.05.2012 and thereby, the order granting interim protection automatically got vacated. Thereupon it appears from the order dated 29.05.2012 recorded by the Court below on an application filed by the petitioner for recall of that order under which process under Section 82 of the Cr PC was ordered to be issued, that warrant of arrest issued had been returned with an endorsement that warrantee is absconding and evading his arrest. Only then process seems to have been issued under Section 82 of the Cr PC on 23.05.2012. 8. It further appears from the execution report submitted by the I.O. on 29.05.2012 which has been annexed as one of the Annexures in the Supplementary counter-affidavit filed by the opposite party No.2 that the petitioner has been removing their movable properties and thereafter on getting that report, it seems that the process under Section 83 was ordered to be issued on 26.06.2012. 9. It be stated at this stage that necessary information which should have been there in the process under Section 82 of the Cr PC, according to the learned counsel appearing for the petitioner, is not there with respect to the place and the time where and when the petitioner is required to be present. but that in the facts and circumstances of the case hardly makes the order illegal even if the process has been issued under Section 83 of the Cr PC within 30 days from the date of execution of the process under Section 82 of the Cr PC particularly when the petitioner is knowing about the case where it is pending and in view of the report of the I.O. that the petitioner has been removing the movable properties. 10. In such situation neither the orders under which warrant of arrest and the process under Section 82 of Cr PC and even the order under which process under Section 83 of the Cr PC have been issued suffer from any illegality. 11. 10. In such situation neither the orders under which warrant of arrest and the process under Section 82 of Cr PC and even the order under which process under Section 83 of the Cr PC have been issued suffer from any illegality. 11. Accordingly, I do not find, any merit in this application and hence, it stands dismissed. Application dismissed.