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2019 DIGILAW 1525 (JHR)

Radhika Raman Prasad v. State of Jharkhand

2019-09-03

AMITAV K.GUPTA

body2019
ORDER : 1. This petition has been filed for quashing the orders dated 22.06.2011, 01.10.2012 & 29.04.2013 passed by the learned Judicial Magistrate, Daltonganj, in connection with complaint case no.1046 of 2009 whereby non-bailable warrant of arrest and the processes under Section 82 and 83 Cr.P.C have been issued against the petitioner. 2. Learned counsel for the petitioner has referred to the Annexures of supplementary affidavit and submitted that it would be evident that in Cr.M.P. No.565 of 2010 vide order dated 03.05.2011, further proceeding in complaint case no. 1046 of 2009, pending in the court of Judicial Magistrate, 1st Class, Daltonganj, Palamau was stayed which was extended vide order dated 28.07.2011 till the next date. That due to inadvertence, the order of stay, granted in the aforesaid Cr.M.P could not be brought to the notice of the court below and the said Cr.M.P was dismissed on 25.08.2017 for non-prosecution. Learned counsel has submitted that the petitioner was under the bona fide belief that since the proceeding had been stayed, therefore he was not required to be physically present in the court below and due to non appearance of the petitioner the court below by order dated 22.06.2011 cancelled the bail and bail bond of the petitioner, and has issued non-bailable warrant of arrest. It is submitted that without receipt of the execution report of non-bailable warrant, vide order dated 01.10.2012, the process under Section 82 Cr.P.C. was issued, and thereafter, on 29.04.2013 the order of attachment under Section 83 Cr.P.C has been passed. It is submitted that the orders have been passed in a mechanical manner without application of judicial mind. 3. Learned Spl. PP has submitted that the case has been pending since 2010. That the petitioner had not produced the stay order therefore the court below has rightly ordered for issuance of non-bailable warrant and processes under Section 82 and 83 Cr.P.C for securing the appearance of the petitioner. It is submitted that the orders do not require any interference by this Court. 4. Heard. It is apparent from the annexures that the proceeding in complaint case no.1046 of 2009 was stayed by order dated 03.05.2011 in Cr.M.P No. 565 of 2010 and extended vide order dated 28.07.2011 till the next date. During the continuation of the stay order, the court below has passed the order dated 22.06.2011 cancelling the bail and bail-bond of the petitioner. During the continuation of the stay order, the court below has passed the order dated 22.06.2011 cancelling the bail and bail-bond of the petitioner. The composite order of cancelling the bail and bail-bond is not in accordance with law, since no show-cause notice was issued to the bailors for cancellation of bail-bonds of the petitioner. 5. The orders for issuance of processes under Section 82 and 83 Cr.P.C read as under: “01.10.2012 Complainant filed attendance through lawyer. Heard and perused the case record. Issue process U/s 82 Cr.P.C. against accused. 29.04.2013 ^^ifjoknh vuqifLFkr gSA vfHk;qDrx.k vuqifLFkr gS] muds fo:) 83 n0iz0la0 dk 28-06-2013 okLrs mifLFkfrA^^ Bare perusal of the orders discloses that the execution report of non-bailable warrant was not received or submitted nor the execution report of the process under Section 82 Cr.P.C was submitted by the Investigating Officer. In fact, the court below has not assigned any reasons nor recorded its satisfaction that the petitioner was concealing himself or absconding. or was removing his movable and immovable property. Apparently, the orders for issuance of processes under Section 82 and 83 Cr.P.C have been passed in a mechanical manner without application of judicial mind. The orders are contrary to the provisions of law. Consequently the orders dated 22.06.2011, 01.10.2012 & 29.04.2013 are, hereby, quashed and set aside. 6. The petitioner shall appear before the court below within a month. The court below after giving an opportunity of hearing to the parties shall pass reasoned and speaking order. 7. Let a copy of this court be communicated to the court below forthwith.