IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12183 of 2009 1. UGRAH MAHTO, SON OF LATE GYANCHAND MAHTO. 2. SHAMBHU MAHTO, SON OF RAGHUBIR MAHTO. 3. BINAY MAHTO, SON OF RAGHUBIR MAHTO. 4. SARJU MAHTO, SON OF RAGHUBIR MAHTO. ALL ARE RESIDENT OF VILLAGE-TANTI, P.S.-PARAIYA, DISTRICT-GAYA. 5. BHOLA MAHTO, SON OF LAKHAN MAHTO. 6. MUNNA MAHTO, SON OF SDHESHWAR MAHTO BOTH ARE RESIDENT OF VILLAGE-BARHINIA, P.S.-PARAIYA, DISTRICT-GAYA. Versus THE STATE OF BIHAR ----------- For the petitioner : Mr. Nagendra Kumar Singh, Advocate. For the State : Mr. Damodar Prasad Tiwary, A.P.P. 3 07.01.2011 Heard. This is petition for quashing the order dated 03- 09-2007 to 22.12.2008 passed by Sri D.S. Srivastava the learned Judicial Magistrate, Ist Class, Gaya in Trial No.1276 of 2008 arising out of Paraia P.S. Case No.60 of 1999 by which the learned magistrate has pleased to issue warrant of arrest bailable, non-bailable and even issued process under Sections 82 and 83 and finally declared the petitioner absconder without the compliance of the provision of Section 82 and 83. The learned counsel for the petitioner submit that after taking cognizance any summon served over the bailable or non-bailable warrant ever executed on the petitioner and even the petitioner has no notice about the process under Section 82 and 83 and hence contend that issue of bailable warrant of arrest without the service of summon and issue of the non-bailable warrant of arrest 2 without execution of the bailable warrant of arrest itself against the provisions of law. The learned counsel for the petitioner however submitted that he is ready to appear in the case and by order dated 03.09.2007 the warrant of arrest was issued. However, from perusal of Section 82 itself apparent that a process under Section 82 is required to be issued when the magistrate/ court satisfied that accused absconded or concealing himself that warrant cannot be executed. However, the certified copy of order sheet have been filed since the taking of cognizance but there is neither any service report nor execution report on record nor any satisfaction of the magistrate or court to believe that the petitioner is absconding. Hence issue process and declaring the petitioner absconder does not sustainable in the eye of law and hence is hereby set aside and the petitioner is directed to appear within four weeks. However, the order shall be enforce on appearance of the petitioner before the court below. PN ( Gopal Prasad, J.)