SHEIKH ANWAR Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) HEARD the learned counsel appearing for the parties and perused the documents on records. The applicant has approached this Court seeking grant of anticipatory bail in connection with Ratu P.S. Case No. 69 of 2013 registered under Sections 406/420/468/471 of the Indian Penal Code.

(2.) THE brief facts of the case as disclosed in the complaint case which was filed on 7.9.2012 are that, on 14.6.2011 an offer was made by the applicant to the complainant for sale of a piece of land and in consideration thereof Rupees Ten lacs was paid on two different dates i.e., on 3.7.2011 and 7.7.2011 by the complainant. It is stated that on 15.7.2011 the applicant promised to execute a sale -deed with respect to the property in question however, on 14.8.2011 he refused the request to execute the sale -deed. The complainant issued legal notices on 31.8.2011, 6.3.2012, 20.7.2012 and 12.11.2012. It is further alleged that recognising the payment of Rs. 10 lacs to him, the applicant in June, 2012 refunded an amount of Rs. 10,000/ - to the complainant. The complaint petition was filed and it was referred to the police which lodged a first information report on 15.4.2013. A charge -sheet is said to have been submitted on 30.8.2013. Cognizance of the offence has been taken on 9.9.2013 and summon has been issued for appearance of the accused persons. Before that, a warrant of arrest was already issued against the applicant on 13.6.2013 which could not be executed and thereafter, on 15.7.2013 on the application made by the Investigating Officer, the learned trial court directed issuance of process under Section 82 Cr.P.C. Subsequently, the process under Section 83 Cr.P.C. was ordered on 23.8.2013.

(3.) THE learned counsel appearing for the applicant submitted that a bare perusal of order dated 12.7.2013 would indicate that it does not satisfy the requirement of law as laid down under Section 82 Cr.P.C. Referring to Section 73 Cr.P.C., the learned counsel for the applicant submits that before issuing process under Section 82 Cr.P.C., the court below must arrive at a conclusion that the accused besides avoiding arrest was absconding or concealing himself so that the warrant of arrest is not executed and only if these jurisdictional facts are available on record, a process under Section 82 Cr.P.C. can be ordered. Referring to judgment in "Ujjam Bal vs. State of Uttar Pradesh", reported in : AIR 1962 SC 1621, it is submitted that since the order passed by the learned trial court ordering issuance of process under Section 82 Cr.P.C., has been passed in absence of jurisdictional facts, it would be an illegal order and thus nullity which cannot be taken note of and this Court can ignore the same. Relying on the judgments of the Hon'ble Supreme Court in "Ajay Kumar Parmar vs. State of Rajasthan", reported in : (2012) 12 SCC 406, "State of Punjab vs. Davinder Pal Singh Bhullar & Ors." reported in : (2011) 14 SCC 770 : (012 (1) JLJR (SC) 153), "Rajasthan State Industrial Development and Investment Corporation vs. Subhash Sindi Cooperative Housing Society, Jaipur & Ors." reported in : (2013) 5 SCC 427, the learned counsel for the applicant submits that the order dated 12.7.2013 being a nullity in the eyes of law, even if the said order has not been challenged by the applicant, it cannot be a bar for entertaining the present anticipatory bail application filed on behalf of the applicant. Referring to the judgment of the Hon'ble Supreme Court in "Surinder Singh @ Shingara Singh vs. State of Punjab" reported in : (2005) 7 SCC 387, the learned counsel for the applicant submits that the guidelines issued in a criminal matter are generally directory and those cannot be said to be laying down absolute law, in so far as grant or refusal of bail is concerned.