IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31575 of 2007 MAHENDRA SINGH Versus STATE OF BIHAR ----------- For the petitioner : Mr. Awinash Nandan Singh, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R The sole F.I.R. accused of Lakhisarai P.S. Case No. 115 of 1995 prays for the quashing of the entire judicial proceeding initiated against him including the order dated 24.10.1996, whereby the learned Additional Chief Judicial Magistrate, Lakhisarai, has taken cognizance against him for offence under section 379 I.P.C. and section 40 of the Mining Act and non bailable warrants and process under sections 82 – 83 Cr.P.C. and a proclamation under section 299 Cr.P.C. has been issued against him without applying with the procedure laid down in the Code. The allegation against the petitioner is that the petitioner without obtaining any license or without depositing requisite fee was utilizing the brick soil in Lakhisarai to produce and sell “Raza” Brand brick in violation of Bihar Mines Rules. It has been submitted on behalf of the petitioner that after the filing of the F.I.R. on 24.6.1995 the petitioner in the - 2 - Court of Deputy Director, Bhagalpur, in case no. 5 of 1995-96 deposited the application charge and amount of interest vide Challan No. 10 dated 1.7.1996 for an amount of Rs. 22,000/- and vide Chalan No. 5 dated 7.8.1996 a sum of Rs. 6720/- and after such deposit the learned Court of Deputy Director, Mines, Bhagalpur, disposed of the case directing the Inquiry Officer and Assistant Mining Officer, Munger to do the needful. It has further been submitted that the petitioner surrendered in the Court of the learned Additional Chief Judicial Magistrate, Lakhisarai, where he was enlarged on bail vide order dated 3.10.1996 considering that the requisite fee had been submitted before the appropriate authority for valid license. It has further been submitted that after receipt of the charge sheet of Lakhisarai P.S. Case No. 115 of 1995, the learned Magistrate took cognizance against the petitioner and issued summons and transferred the case to the Court of Sri K.K.Agrawal, Judicial Magistrate, Lakhisarai on 24.10.1996 and the transferee court issued a bailable warrant against the petitioner on 2.1.1998 without there being a valid service report of summons issued and without there being an execution report of the warrant the learned Magistrate on 22.1.1998 issued a non bailable warrant and thereafter without receiving any execution report or the return of the non bailable warrant issued, he issued - 3 - processes under sections 82 - 83 Cr.P.C. on 3.6.1998 in one go and finally proclaimed the petitioner as an absconder under section 299 Cr.P.C. I have perused the lower court records which were called for and from perusal thereof the submissions advanced by the learned counsel for the petitioner appears to be fully correct. It appears from the order sheet of the court below that summons were for the first time issued on 19.11.1997 and while still awaiting service report by order dated 2.1.1998 bailable warrant was directed to be issued which was issued only on 6.1.1998. The ordersheet dated 22.1.1998 shows that the service report of the bailable warrant issued had not been received and notwithstanding the same the Court directed for issuance of non bailable warrant of arrest against the petitioner which was issued only on 23.3.1998. Order dated 3.6.1998 reveals that although the execution report of the non bailable warrant issued had not been received processes under sections 82 – 83 Cr.P.C. were directed to be issued in one go and were in fact issued on 4.6.1998. Endorsement in column 4 of the ordersheet by the side of order dated 3.7.1998 discloses that directions were issued for re-issuance of processes under sections 82-83 Cr.P.C and notwithstanding there being no service report or execution report by order dated 7.4.1999 the petitioner was declared to be - 4 - an absconder. This apparently appears to be a blatant case of misuse of the process of the Court. Even otherwise when bail had been granted to the petitioner in view of he having deposited the money towards and interest before the Deputy Director, Mines, Bhagalpur, there obviously could be no offence which could be said to have been made out either under the Penal Code or the Mining Act and, therefore, the entire proceeding against the petitioner appears to be an abuse of the process of the Court and is accordingly quashed. In the result the application succeeds and the entire proceeding as against the petitioner is hereby quashed. The Patna High Court The Dated 5th September, 2008 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)