RAM KUMAR NAYAK Vs. GAJANAN AGRAWAL

JUDGEMENT

(1.) Since common question of fact and law is involved in both of these petitions, therefore, they are heard together and are being disposed of by this common order.

(2.) In both of these petitions, the petitioner/accused and respondent/complainant are one and the same. The respondent/complainant preferred an application under Section 138 of the Negotiable Instruments Act, 1881 before learned Judicial Magistrate First Class, Basna, Distt. Mahasamund in which the petitioner/accused appeared and ultimately on 23/07/2018, final argument was heard and the matter was reserved for pronouncement of order on 30/07/2018 but unfortunately, on that day, the petitioner/accused became unwell and filed an application under Section 317 of CrPC for exemption from personal appearance which was granted and the matter was then fixed for the next day i.e. 31/07/2018, but on account of petitioner/accused suffering from paralysis, he again could not appear before the Court on 31/07/2018 and the matter was finally fixed for 06/08/2018. On 06/08/2018, when the petitioner/accused still did not appear before that Court, learned trial Magistrate rejected petitioner's application for exemption from personal appearance and after declaring him as an absentee, straightway issued warrant of arrest against him and thereafter, on 20/08/2018, the warrant of arrest returned unserved. Ultimately, on 07/02/2019, learned trial Magistrate straightway declared the petitioner/accused to be absconded and issued a standing warrant of arrest against him which has been sought to be challenged by the petitioner/accused in both of these petitions.

(3.) Mr. Vaibhav A. Goverdhan, learned counsel for the petitioner/accused, would submit that the procedure laid down in sub-sections (1) and (2) of Section 82 of CrPC has not been followed by learned trial Magistrate and straightway permanent warrant of arrest has been issued against the petitioner/accused which is illegal and bad in law as the provisions contained under Section 82(1) & (2) have to be followed mandatorily before declaring any person as a proclaimed absconder, therefore, the standing warrant of arrest issued against the petitioner/accused deserves to be set aside and the trial Court be directed to hear the matter afresh and pronounce the judgment as final arguments have already been heard on 23/07/2018 i.e. more than two years back and since the final argument has already been heard and merely because of the absence of the petitioner/accused, judgment could not be pronounced, petitioner/accused is ready and willing to appear before that Court.