IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31049 of 2009 Surendra Kumar Bihari @ Surendra Yadav Versus State Of Bihar ---------------------------------- 2 09.12.2011 Heard learned counsel for the petitioner and learned counsel for the State. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) has been filed for quashing the order dated 19.02.2009 passed by the Sri R.K. Sanyal, learned Sessions Judge, Saharsa passed in Cr. Revision No. 239 of 2007 confirming the order dated 22.03.2007 and 21.05.2007 passed by Sri S. Kumar, learned Judicial Magistrate 1st Class, Supaul in connection with Supaul P.S. Case No. 212 of 1994 whereby learned Magistrate without waiting for the service report of the summons and without issuing any bailable warrant has been pleased to issue non bailable warrant of arrest against the petitioner and has also directed for issuance of process under Sections 82 and 83 Code of Criminal Procedure proclaiming the petitioner to be an absconder. The prosecution case in brief is that an F.I.R. was instituted on the basis of fardbeyan of one Akhtar Hussain, Cashier, Supaul Sub-Post Office on 06.07.1994 giving rise to Supaul P.S. Case No. 212 of 1994. It is the allegation of the informant that while he was returning from the State Bank of India, Supaul Branch after withdrawing a sum of Rs. 4 lacs packed in two cotton bags, along with two other postal staff namely Firoz Alam and Sachidanand on a rickshaw, in the meantime three criminals who were riding on 2 Rajdoor Motorcycle stopped his rickshaw and after snatching the money bags containing Rs. 4 lacs fled away with the money. The informant claimed to have seen the offender and that he would recognize them upon their production. On the basis of the fardbeyan an F.I.R. was instituted against unknown. It is during the course of investigation that the name of the petitioner had transpired and who was made accused in the said case which was instituted for the offence punishable under Section 392 of the Indian Penal Code. It is the case of the petitioner that he was granted anticipatory bail by a Bench of the Court in Cr. Misc. No. 15388 of 1994 vide order passed on 07.10.1994. It is further the case of the petitioner that pursuant to directions of this Court, he was put on T.I. parade but none of the witnesses had identified the petitioner. The police submitted chargesheet on 14.11.1994 and whereafter the learned Magistrate took cognizance of the offence punishable under Section 395 of the Indian Penal Code against the accused persons including the petitioner, vide order passed on 20.08.1998. It is not in dispute that the order taking cognizance was never challenged by the petitioner. The only grievance that has been raised by the petitioner in the present proceeding is that the learned Magistrate without issuance of any summons and/or without waiting for the service report of the bailable warrant of arrest, has by order dated 22.03.2007, even while observing that the service report has not been received, proceeded to issue not only a non bailable warrant of arrest against the petitioner but also issued process under Sections 82 and 83 of the Code of Criminal Procedure. 3 Learned counsel for the petitioner with reference to a judicial pronouncement of this Court since reported in 2009(2) PLJR 957 (Mahendra Singh versus State of Bihar) submits that the action of the learned Magistrate in issuing a non bailable warrant of arrest even where the service report of the summons/bailable warrant of arrest was yet to be received, was clearly unsustainable in law. Having heard learned counsel appearing for the parties and having perused materials on record as also the judicial pronouncement of this Court in the case of Mahendra Singh (supra), I find substance in the contention advanced on behalf of the petitioner. The learned court below either should have awaited the service report of the summons or should have issued a bailable warrant of arrest before issuing a non bailable warrant of arrest. In the present case not only the learned Court below has hastenly issued a non bailable warrant of arrest but has also by the same order issued processes under Sections 82 and 83 of the Code. This is a clear infraction of the procedure laid down under Chapter VI of the Code. For the reason aforesaid, this application is allowed. The impugned order dated 19.02.2009 passed in Cr. Revision No. 239 of 2007 by Sri R.K. Sanyal , Sessions Judge, Saharsa together with the order(s) dated 22.03.2007 and 21.05.2007 passed by the learned Judicial Magistrate, 1st Class, Supaul is set aside. The petitioner is directed to present himself before the learned Court below on or before 14.01.2012 and shall continue to present himself on each and every date fixed in the case failing which the court concerned shall be at liberty to take appropriate steps for taking him into custody. 4 This order has been passed with a clear stipulation that if the petitioner fails to present himself before the Court below on or before 14.01.2012, this order would stand recalled and the Court below shall be at liberty to proceed with the execution of the non bailable warrant of arrest against the petitioner in connection with Supaul P.S. Case No. 212 of 1994 in accordance with law, in the light of its orders dated 22.03.2007 and 21.05.2007. Bibhash (Jyoti Saran, J.)