IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.294 of 2009 SIDHARTH KUMAR GUPTA, S/o. Girindra Prasad Gupta, r/o. Mohalla- Chank Musallapur, P.S. Kadamkuan, District- Patna. Versus THE STATE OF BIHAR & ORS Counsel for the Petitioner: Mr. Rajendra Kumar Jain, Advocate, Counsel for the State: G.P. - 13 ----------- 02 01.07.2009 The petitioner has filed this petition with a prayer for quashing the issuance of non-bailable warrant against the petitioner by the Judicial Magistrate, Ist Class, Patna in complaint case No.3131( C) of 2005/T.R. No.408 of 2009. The petitioner is an accused in the case. Vide Annexure-3, the petitioner has filed the order-sheets of the court-below. Vide orders dated 18.07.2008 & 18.08.2008 of the court-below it appears that the petitioner has appeared before the court-below and had filed petition under Section 205 Cr.P.C. praying for exemption from his personal attendance but the petition was not pressed, hence, it was dismissed as such. In the order dated 18.08.2008 when the non-bailable warrant was issued against the petitioner the court-below mentions that the petitioner had knowledge of the case because he had filed a petition under Section 205 Cr.P.C. The court-below also mentions that the petitioner had moved this Court for anticipatory bail but that prayer was refused with a direction to surrender before the court-below within four weeks but the petitioner did not surrender. In such view of the matters, being 2 of the view that the petitioner, despite knowledge of the case, was deliberately avoiding his attendance before the Court, the learned Magistrate issued non-bailable warrant in order to compel the appearance of the petitioner before the Court. Learned counsel for the petitioner submits that the court-below did not issue summons against the petitioner and directly issued N.B.W, therefore, the order issuing N.B.W. is illegal, hence, the prayer has been made for quashing the order. In support of his submission learned counsel for the petitioner cited the case of Inder Mohan Gauswami and Another V. State of Utranchal and Another reported in (2007) 12 S.C.C. Page-1. In this case the Hon’ble Supreme Court at para-55 held that the Court should direct service of summons and if the accused seems to be avoiding summons then bailable warrant should be issued and in a third instance when the Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally the process for issuance of non-bailable warrant should be resorted too. In view of such finding of the Hon’ble Supreme Court as cited above, learned counsel for the petitioner submitted that in this case the court-below had issued summons at the first instance but without receiving any service of report of the summons and without issuing bailable warrant at second instance has directly issued non-bailable warrant which according to the learned counsel is not legal hence prayer has 3 been made for quashing the order for the issuance of non- bailable warrant against the petitioner. On perusal of what has been held by the Hon’ble Supreme Court in the cited case (Supra) it appears that it was just as a matter of procedure in normal cases it has been held that the court’s will issuing summons for the first time and that subsequently when the court’s come to find that the accused is deliberately avoiding the proceedings of the Court non-bailable warrants may be issued in order to compel the appearance of the accused. In the instant case, at the first instance, the Court had issued summons against the petitioner. While issuing non- bailable warrant the Court has mentioned in detail that the petitioner had filed a petition under Section 205 Cr.P.C. with a prayer for exempting his personal attendance but the petition stood dismissed. Thus, the Court was rightly of the view that the petitioner had the knowledge of the case and the court- below also mention in its order that the petitioner had approached the High Court for obtaining anticipatory bail but the prayer was refused with a direction to surrender before the court-below within four weeks but the petitioner did not surrender before the court-below despite that direction. These materials were sufficient for the court-below to come to the finding that despite knowledge of the case the petitioner were deliberately avoiding to appear before the court-below. In such view of the matters, the court-below was 4 perfectly justified in issuing non-bailable warrant against the petitioner in order to compel the appearance. Finding no merit in this application, it is dismissed. Mkr. (C.M. Prasad,J.)