IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38730 of 2007 1. MD.MOKHTAR, SON OF MD.SERAJ, RESIDENT OF MOHALLA- MIRDAHTOLI, POLICE STATION- BUNDELKHAND, DISTRICT-NAWADAH. 2. MD. NASAR @ BABLU, SON OF MD.AKHTAR IMAM, RESIDENT O F VILLAGE. BHADAUNI, POLICE STATION NAWADAH TOWN, DISTRICT-NAWADAH 3. MD.AFTAB, SON OF MD.EKBAL, RESIDENT OF MOHALLA- MIRDAH TOLI, POLICE STATION-BUNDELKHAND, DISTT.- NAWADAH ------------------ PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MD. BADRUDDIN KHAN, SON OF MD. SADIQUE KHAN, RESIDENT OF VILLAGE-ANSARNAGAR, POLICE STATION- BUNDELKHAND, DISTRICT –NAWADAH. --------------------- OPP.PARTIES. ----------- 3 12-12-2008 Heard Mr.Anil Singh, the learned counsel for the petitioners as also Mrs. Anita Kumari Singh, the learned counsel for Opp.Party no.2 and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Through this application, the petitioners have prayed for the quashing of the order dated 21.1.2007/22.1.2007 passed in Nawadah (Bundelkhand) P.S. Case no.163 of 2004 , whereby the petitioners have been declared absconders and permanent non- bailable warrant has been issued against them. It appears that summons were directed to be issued against the petitioners by order dated 13.12.2004 which as per the endorsement in the last column of the order sheet was issued on - 2 - 15.12.2004. The court waited for return of service report, but no service report having been received, by order dated 13.4.2005 bailable warrants were directed to be issued which order was carried by the office on 7.6.2006. Then again without receipt of the execution report of bailable warrants, non-bailable warrants were directed to be issued by order dated 11.11.2005 which, in fact, were issued on 23.11.2005. Again the court without receipt of the execution report of the non-bailable warrants by order dated 3.2.2006 directed for issuance of process under Sections 82-83 Cr.P.C. which were duly issued on 24.5.2006.Then the court again without waiting for the execution report of the process issued by the impugned order declared the petitioners to be absconders and permanent warrants were issued against them. Unfortunately, the court below has acted in excess of the jurisdiction conferred upon him which as a result, has occasioned in an abuse of the process of the court. It is well known that warrants cannot be issued without the service report of summons having been received. It is also well known that without the execution report of bailable warrants, process under Sections 82 and 83 Cr.P.C. cannot be issued. To top it all, the Magistrate has directed for issuance of process under Sections 82 and 83 Cr.P.C. simultaneously which by itself is illegal and unwarranted. It is well-settled by a catena of decisions, both of the Supreme Court as also of this Court, that process under Sections 82 and 83 Cr.P.C. should not be issued at the - 3 - same time or simultaneously. There should be reasonable gap between the issuance of the two processes. Due regard being had to the facts and circumstances of the case, the impugned order dated 21.1.2007/22.1.2007 passed by Sri Shiv Kumar Jha, Judicial Magistrate, Nawadah in Nawadah (Bundelkhand) P.S. Case No.164 of 2004 is hereby set aside and the application is allowed. Since all the offences whereunder the case has been registered are bailable offences, the learned counsel for the petitioners has assured that all the petitioners shall be present on the date fixed by the court below, moreso, in view of the submissions advanced by the learned counsel for Opp.Party no.2 that there has been a compromise between the parties and a compromise petition had been filed in court.. In view of the assurances given by the learned counsel for the petitioners, the petitioners are directed to surrender in the court below positively on 7th of January, 2008 and on such surrender, the court below shall proceed in accordance with law. This order may be communicated to the court below through Fax on payment of the cost by the petitioners. ( Abhijit Sinha, J ) NKS/- - 4 -