KHARGESWAR DEKA vs THE STATE OF ASSAM AND ANR.

1.Heard Ms. K. Kalita, learned counsel appearing for the accused/petitioner and Mr. B. Gogoi, learned Addl. Public Prosecutor for the State

respondent No.1.

By this application under Section 482 Cr.P.C., the accused/petitioner has prayed for quashing of the order, dated 06.03.2018, passed by the learned

Judicial Magistrate, First Class, Baksa, Mushalpur in G.R. Case No. 480/2018(New)/80/2016(Old), whereby, non-bailable warrant of arrest has been

issued against him.

The accused/petitioner’s case, in a nutshell, is that based on an F.I.R, dated 15.01.2016, Goreswar P.S Case No.04/2016, under Sections

448/376/325/506 IPC, District Baksa, was registered against him. After completion of the investigation, the Police submitted charge-sheet under the

aforesaid Sections of the Indian Penal Code against the accused/petitioner showing him as an absconder and thereupon, the corresponding G.R. Case

No. 480/2018 was registered in the Court of learned Sub-Divisional Judicial Magistrate, Rangia. The accused/petitioner has contended that instead of

service of summons, the learned Judicial Magistrate, First Class at Rangia, issued non-bailable warrant of arrest against him vide order, dated

25.08.2017. In the meantime, the case record was transferred to the Court of Baksa at Mushalpur due to bifurcation of the district and the learned

Judicial Magistrate, First Class at Baksa, Mushalpur issued a fresh Non-bailable warrant of arrest vide the impugned order, dated 06.03.2018 fixing on

24.04.2018, for appearance.

Ms. K. Kalita, learned counsel for the accused/petitioner submits that the learned Court below mis-conceived the procedural law as without serving

summons on the accused/petitioner issued the non-bailable warrant of arrest against him which vitiated the impugned order, dated 06.03.2018.

Mr. B. Gogoi, learned Addl. P.P. for the State respondent No.1 submits that in the backdrop of facts averred in the petition, the impugned order,

dated 06.03.2018, may be set aside and quashed and the accused/petitioner may be directed to appear before the learned Court below on or before

the date fixed for his appearance and in the meantime, till his so appearance before the Court below, the execution of the warrant of arrest may be

stayed.

Section 87 Cr.P.C. provides that a Court may in its discretion issue a warrant, with or without bail, in lieu of or in addition to a summon against the

accused or witness if the Court sees reasons to believe that he has absconded or will not obey the summons or when he fails to appear in response to

the summons issued to him.

The impugned order, dated 06.03.2018, reads as follows: “6/03/18 Accused Khargeswar Deka is absent. Issue fresh NBWA against the

accused Khargeswar Deka. Fix 24-04-2018 for App.â€​

Perusal of the chage-sheet, it appears that the accused/petitioner has been shown as an absconder by the police. The law provides procedure when

an accused can be proclaimed as an absconder. Sections 82 to 85 Cr.P.C. are intended to deal with person who try to avoid the service of summons

and thus evade the process of law. Conditions specified in Section 82 Cr.P.C. for issue of proclamation are mandatory and contravention of any of

these conditions renders the proclamation and proceedings subsequent thereto is illegal. Sub-Section-(3) of Section 82 Cr.P.C. raises a conclusive

presumption as to the compliance of Section 82 regarding publication of the proclamation. The immediate effect of the publication of proclamation

under Section 82 Cr.P.C. is that the Court is empowered to make an order of attachment under Section 83 Cr.P.C. whereupon, the subsequent

Sections 84 and 85 do come into play. Only thereafter, upon proof of compliance of the aforesaid provisions, the accused can be proclaimed

absconder.

In the instant case, no evidence is available to show that the aforesaid provisions have been complied with while proclaiming the accused/petitioner

as an absconder in the charge-sheet and after filing thereof, the learned Court below recorded any reasons of satisfaction to issue warrant of arrest

against him in lieu of or in addition to summons. However, keeping in consideration of the aggravated nature of the alleged offences, the

accused/petitioner has committed as per the charge-sheet, this Court is not inclined to set aside and quash the impugned order, dated 06.03.2018

aforementioned.

It is, therefore, directed that the accused/petitioner shall appear before the learned Court below on or before 24.04.2018, and apply for bail, if so

advised, whereupon, the learned Court below shall dispose of the same in accordance with law and further, till such appearance, the execution of the

warrant of arrest issued against him shall remain stayed. With the above directions, the petition stands disposed of.