Ajay Kumar Gupta, Managing Director vs The State of Bihar

Heard learned counsel for the parties.

This writ application has been preferred against

order dated 20.09.2017 passed by learned Additional District &

Sessions Judge-III, Patna in Misc. Complaint Case No.01 of 2015

whereby the learned Trial Judge has ordered for issuance of non-

bailable warrant of arrest against the petitioners without

ensuring service of summons already issued against the

petitioners.

Reliance has been placed on behalf of the

petitioners on case Jayant Dang Vs.The State of Bihar & Ors

reported in 2004 (4) PLJR 25. In paragraph-6 of the said judgment, a Coordinate Bench of this Court has held as follows:-

"6. Having considered the rival submissions of the Counsel for the parties this Court holds that it is not in dispute from the records that accused no.6 in fact entered appearance at the stage of summons. In so far as accused no.2 is concerned, there was no service report with regard to summons when warrants came to be issued against him on 11.01.2000. Chapter VI of the Code of Criminal Procedure details the procedure of issuance of and service of summons. The stage of warrant as contained in Part B of Chapter VI arises only thereafter. In the absence of any order recording the satisfaction of the Court below with regard to the service of summons according to law, the bailable warrants issued against the petitioner (accused no.2) cannot be sustained. In the circumstances, this Court holds that the issuance of warrant against accused no.2 was not justified at this stage. Reliance may be had upon the judgment of this Court reported in 2000 (3) PLJR 251. Warrants thus having been issued contrary to law the proceedings would be deemed to be at the stage of summons and the accused no.2 having entered appearance at this stage cannot thus be denied the benefit of consideration for grant of relief under Section 205 Cr.P.C. This Court therefore holds that the proceedings in so far as accused no.2 be concerned, rests at the stage of summons."

On perusal of the entire order sheet of the court

below annexed as Annexure-2, it is evident that there is no report

of service of summons on the record, therefore, issuance of non- bailable warrant of arrest against the petitioners is bad in law in

view of the aforesaid judgment as well as the fact that there was

no material before the learned Magistrate to satisfy that the

petitioners are not honouring the summons issued by the court

below. Therefore, impugned order stands quashed and in the

event, the petitioners appear before the court below within a

month, the same shall be treated as appearance on summons.

The aforesaid period of one month shall be counted from the date

of disposal of the petition of the petitioners filed under Section

205 of Cr.P.C., if any, and pending before the court below.

With the aforesaid observation, this writ

application stands disposed of.