IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44266 of 2009 1. KUNDAN SINGH @ RAJESH PRASAD SINGH S/O LATE HARI SINGH R/O VILL- LAKHANCHAND, P.S- MOKAMA, DISTT- PATNA Versus 1. THE STATE OF BIHAR For the Petitioner :- Mr. Chitranjan Sinha, Senior Advocate Mr. Arun Kumar, Advocate Mr. Bipin Kumar, Advocate For the opposite party :- Mr. A. Sharma, A.P.P. ----------- 2 8.1.2010 The petitioner has challenged the order dated 5.11.2009 passed by the Additional Chief Judicial Magistrate, Barh and the order dated 19.11.2009 in Patna, Mokama P.S. Case No. 174 of 2009. The facts are that the petitioner has been made accused in a case under Sections 302, 201, 109, 120B & 34 of the Indian Penal Code. The First Information Report was instituted on 23.9.2009. The petitioner filed an anticipatory bail application before this Court which is numbered as Cr. Misc. No. 42990 of 2009 which was heard on 22.12.2009. This Court has been pleased to call for the case diary in the anticipatory bail application. On 21.10.2009 the Investigating Officer has filed an application before the Additional Chief Judicial Magistrate, Barh praying therein that a non-bailable warrant of arrest should be issued against ten named accused persons. The reason for filing this application is that it has been stated that it is essential for the purposes of completing the investigation. On the basis of the said application, the Additional Chief Judicial Magistrate, Barh passed an order dated 5.11.2009 wherein after pursuing the case diary the Court has issued non-bailable warrant of arrest. On 9.11.2009 on 2 the basis of an application by the Investigating Officer processes have been issued under Section 82 of the Code of Criminal Procedure. Learned counsel for the petitioner submits that there was no occasion for the Investigating Officer to make a prayer for issuance of non-bailable warrant of arrest specially with a view to complete the investigation. It is submitted that without waiting for the report which would indicate that the petitioner is evading arrest, a prayer has been made for issuance of processes. It is well settled by a decision of the Apex Court in the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in 2008 (1) PLJR 82(SC) and in the case of Krishna Murari Yadav Vs. State of Bihar reported in 2005 (3) PLJR 746 that the issuance of processes under Section 83 of the Code of Criminal Procedure should not be made in a mechanical manner rather the Magistrate should record his findings that the accused persons are absconders or are concealing themselves. In view of the aforesaid judgments it appears in the present case, the Additional Chief Judicial Magistrate, Barh without satisfying himself as to whether the petitioner was evading arrest has passed the impugned order. I accordingly quash the order dated 19.11.2009 passed in Patna, Mokama P.S. Case No. 174 of 2009. As far as the order dated 5.11.2009 by which non- bailable warrant of arrest has been issued against the petitioner, 3 this Court feels that it was not essential for the court to pass such an order. The offence under Section 302 is cognizable offence and the petitioner and other co-accused persons could have been arrested even without an order of the Additional Chief Judicial Magistrate, Barh. This application is allowed. Sanjay (Sheema Ali Khan, J.)