NIRMALA DEVI Vs. STATE OF H.P.

JUDGEMENT

(1.) Since the facts involved in these two petitions moved under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) are the same and raises similar questions of law and are aimed at seeking the same final relief, therefore, both these petitions are disposed of by this common order.

(2.) The petitioner in Cr.M.M.O. No. 69 of 2002 is Nirmala Devi wife of the petitioner/accused in Cr.M.M.O. No. 82 of 2002. The allegations against the accused are that he is a co -accused in case No. 250/1 of 1997 under Sections 498 -A and 306, I.P.C. which was at the relevant time pending committal. Initially the case was pending in the Court of learned Chief Judicial Magistrate, Bilaspur and subsequently was assigned to the learned Judicial Magistrate Ist Class, Bilaspur. Since the accused is an army personnel in the active service of the Army, therefore, the learned Chief Judicial Magistrate, Bilaspur intimated the concerned Commanding Officer vide option memo issued on 3 -1 -2000 to exercise the option whether the accused was to be tried by the Army authorities or not. The Army authorities did not exercise their option with the prescribed time despite further option letters dated 8 -3 -2000 and 25 -9 -2000. By this time the case stood assigned to the learned Judicial Magistrate Ist Class who vide order dated 24 -4 -2001 decided to proceed with the matter for want of any option having been given by the Army authorities and issued non bailable warrants against the accused. When the warrant could not be executed proceedings under Section 82 of the Code were initiated vide order dated 22 -9 -2001 and finally the accused was declared proclaimed offender vide order dated 18 -5 -2002 and a copy of such order was sent to the S.H.O. Police Station, Sadar Bilaspur for necessary action under Section 83 of the Code with the result that the accused has rendered himself liable for arrest by the police even without a warrant. Hence, the petitions. The case against the co -accused was committed to the Court of the learned Sessions Judge, Bilaspur vide order dated 22 -5 -2002.

(3.) Case of the petitioners is that the accused could not put in appearance because of his being in active Army service and posting in a sensitive and operational area as he could not be spared by the Army authorities, therefore, neither he had absconded nor avoided the process of the Court and is willing to surrender and apply for bail and till the fate of his application for bail is decided he may not be arrested.