DHANESWAR @ Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) EVEN though the case was listed for admission, on the request of learned Counsel for both the parties, it is taken up for final disposal and the following order is passed. The Petitioner challenges the order dated 18.7.1988 passed by the S.D.J.M., Bhadrak in G.R. Case No. 97 of 1998 issuing N.B.W. of Arrest against him. In that case he is alleged to have committed offence under Section 379 of I.P.C. read with Section 39 of the Indian Electricity Act. The impugned order reads as follows:

(3.) AS it appears from this order since accused -Petitioner was not traced out, personal service could not be made on him and the S.Rs. were returned back. If, in fact, accused -Petitioner could not be traced out, it was the duty of the process server to serve the notice on any adult male member of his family and if no such adult male member was available or the adult member refused to accept the notice, he should have affixed one of the duplicate summons to some conspicuous part of the house or homestead in which the accused summoned ordinarily resides as required under Sections 62, 64 and 65 of Code of Criminal Procedure but it has not been done so. As such the notice was not sufficient. In view of such fact the learned Court below ought not have jumped to issue N.B.W. of Arrest against the accused -Petitioner. If the impugned order is allowed to be retained it will lead to miscarriage of justice.