SANTANU KR PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The accused -petitioner has filed this application Under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C') for quashing a criminal proceeding numbered as G.R. Case No. 1394/98 pending before the Sub -Divisional Judicial Magistrate, Puri, under the following circumstances :

(2.) IT appears that the aforesaid G.R. case was registered on the basis of FIR lodged by one Subal Jena alleging commission of offences Under Sections 279 and 337, Indian Penal Code (in short, the 'IPC'). Alter investigation, charge -sheet was filed and the Sub -Divisional Judicial Magistrate, Puri, took cognizance against the present petitioner on 6.2.1989 and issued summons against the petitioner. From the order -sheet it appears that the summons issued on several dates remained unserved and the service returns did not come on many occasions. Ultimately the Magistrate issued bailable warrant which also remained unexecuted and thereafter Non -Bailable Warrant was issued which was again not executed and the Court issued coercive process Under Sections 82 and 83, Cr.P.C. At that stage, the present petitioner appeared through his lawyers and filed application Under Section 205, Cr.P.C. for dispensing with the personal attendance and for recalling the N.B.W. and the process issued Under Sections 82 and 83. Cr.P.C. The said application was rejected on 19.3.1996 on the ground that the petitioner having been released on bail by the police must have been aware of the pendency of the case and as such his absence for such long period could not be condoned. The prayer for dispensing with personal appearance of the petitioner Under Section 205(1), Cr.P.C. was also rejected on the ground that N.B.W. having been already issued, there is no scope for invoking power Under Section 205. It was further directed that the petitioner should appear on the next date so that the bail application can be considered in the back -ground of long delay in responding to the process of the Court. After the aforesaid order was passed, the petitioner has filed this application Under Section 482, Cr.P.C. for quashing the criminal proceeding mainly on the ground of undue delay in disposal of the criminal case. - -

(3.) ON perusal of the records, it appears that the summons issued by the trial Court from time to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non -bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps Under Section 82, Cr.P.C. the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub -Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had. in fact, absconded or concealed. Since there was no justification for taking steps Under Section 82, there was no scope for invoking the power Under Section 83, Cr.P.C. and as such the action of the Sub -Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustained.