1 S. B. CRIMINAL MISC. PETITION NO.84/2008 RAJENDRA KUMAR V. THE STATE OF RAJASTHAN . DATE: 11/09/2008. HON'BLE MR. JUSTICE C. M. TOTLA Mr. P.N.Mohnani, for Petitioner. Mr.S.N.Tiwari, PP, for the State. Accused petitioner facing trial-before the Court of Additional Civil Judge (Junior Division) & Judicial Magistrate No.2, Bhilwara (Criminal Regular Case No.92/99), absented himself in June, 2003, who as per order dated 29.09.2006, declared absconder under Section 299, Cr.P.C., and proceedings under Sections 82 & 83, Cr.P.C., ordered, requests for setting aside of the order dated 29.09.2006. Learned counsel for the petitioner submitted that trial is for the offences under Sections 323 & 342, IPC, - both offences bailable ones – petitioner because of death of relative was away to Bombay, so could not present himself on 06.06.2003 and bail bond forfeited - while declaring absconder and ordering proceedings under Sections 82 & 83, mandatory provisions of law are not followed – even if report of no possibility of service is received then also recording of statement of process server is essential which is not done in this case – without recording any evidence under Section 299, Cr.P.C., the file is consigned to record. Stated that proceedings, as above, are wholly erroneous and deserves to be dropped. Also contended that in summons case, there can only be either conviction or acquittal and if the file is so consigned to record, it is to be considered as order of acquittal. Submitted 2 that compliance of the procedure laid down in Cr.P.C. is mandatory. Relying on 2007 Cr.L.J. 3113, Abdul Rehman & Another v. State of Rajasthan, requested that setting aside proceedings uander Sections 82 & 83, Cr.P.C., bailable warrant may be issued instead of standing warrant. During course of arguments, it was also contended that the petitioner is a Government servant, offences are bailable one and as above, no compliance of provisions of law, so directions for releasing on bail on surrender may also be in the interest of justice. Considered. It appears from the petition that the petitioner absented himself in June, 2003, i.e., about 5 years earlier and order regarding declaring absconding is of September, 2006, i.e., after three years of absence. As no property is alleged to be attached, so further examination of necessity and compliance of Sections 82 and 83 does not appear to be necessary. Certainly, if the petitioner accused presents (surrenders) before the trial Court and bail application is moved, all the arguments, alleged reasons and facts and nature of case etc shall be considered by the learned Magistrate, so, instead of altering warrant to a bailable warrant, it is hereby directed that if the petitioner presents (surrenders) himself prior and inclusive of October 20th, 2008, in early court hours, his bail application, if presented, may be disposed of on the same day by the learned Magistrate. The petition stands disposed of. scd (C. M. TOTLA), J.