Sanjay Kumar Singh and Ajay Kumar Singh vs State of Jharkhand

R.R. Prasad, J.—This application has been filed for quashing of the order dated 6.7.1996 passed by the learned Chief Judicial Magistrate,

Palamau at Daltonganj in G.R. No. 321 of 1986 wherein petitioners have been declared absconder and also the order dated 27.2.2007 passed by

the learned Additional Sessions Judge (F.T.C. No. II), Palamau at Daltonganj in Sessions Trial No. 252A of 1996 whereby the trial court by

virtue of the provision as contained in Section 299 of the Code of Criminal Procedure while directing the record to be deposited in the record

room passed an order for issuance of permanent warrant against the petitioners.

Learned Counsel appearing for the petitioners submits that the first information report was lodged on 1.3.1986 alleging therein that accused

persons in an attempt to kill him fired shot causing injury. The said case was registered as Haidar Nagar P.S. case No. 6 of 1986 u/s 307 and

other allied sections of the Indian Penal Code and also u/s 27 of the Arms Act against some named accused persons as well as some unknown.

While the matter was pending investigation, the petitioners were granted bail by this Court. Subsequently, charge sheet was submitted on 9.5.1989

against the petitioners and some others, upon which cognizance of the offence was taken and the summons were ordered to be issued. Pursuant to

that, some of the accused persons appeared, who faced the trial and were acquitted but the petitioners had no knowledge about the submission of

the charge sheet as no notice/summons were ever served upon them nor warrant of arrest or even the process issued u/s 82/83 of the Code of

Criminal Procedure were ever executed, still the Chief Judicial Magistrate, vide its order dated 6.7.1996 declared the petitioners absconder and

committed the case to the court of sessions. When the case was transferred to the court of 1st Additional Sessions Judge, Palamau at Daltonganj,

the court, vide its order dated 16.12.1996 passed an order for issuance of permanent warrant of arrest as well as process u/s 82/83 of the Code

of Criminal Procedure. Subsequently, it passed an order on 27.2.2007 declaring the petitioners as permanent absconder.

Being aggrieved with the said orders, this writ application has been filed for quashing of the order dated 27.2.2997 passed by the Additional

Sessions Judge (F.T.C. No. II), Palamau at Daltonganj and also the order dated 6.7.1996 passed by the Chief Judicial Magistrate, Palamau at

Daltonganj.

Mr. A.K. Kashyap, learned Sr. counsel appearing for the petitioners submits that the learned Chief Judicial Magistrate after submission of the

charge sheet, though seems to have issued the summons and subsequently, warrant of arrest but without receiving either service report of the

summon or the execution report of the warrant of arrest, declared the petitioners as absconder, vide its order dated 6.7.1996 and similarly, when

the case was committed to the court of sessions, learned Additional Sessions Judge (F.T.C. No. II), Palamau at Daltonganj also in the same

manner without receiving any execution report either of the warrant of arrest or process issued u/s 82/83 of the Code of Criminal Procedure

passed an order on 27.2.2007 whereby the petitioners have been declared permanent absconder and hence, both the orders suffer from illegality

and are fit to be set aside.

Learned Counsel further submits that the submission made above is based on the order sheets of both the courts which have been annexed in

this writ application as none of the order passed either by the Chief Judicial Magistrate, Palamau at Daltonganj or by the Additional Sessions

Judge(F.T.C No.II), Palamau at Daltonganj would show that at any point of time before issuing warrant of arrest or process u/s 82/83 of the Code

of Criminal Procedure had ever received service report of the summons or the execution report of the warrant of arrest.

Submission advance on behalf of the petitioners could not be controverted on behalf of the State.

Having heard learned Counsel appearing for the parties and from perusal of the record including the order of the court of Chief Judicial

Magistrate, Palamau at Daltonganj and also the court of the Additional Sessions Judge (F.T.C No. II), Palamau at Daltonganj submission

advanced on behalf of the petitioners appears to be correct as the learned Chief Judicial Magistrate, Palamau at Daltonganj appears to have issued

the order dated 6.7.1996 without receiving service report of the summon or execution report of the warrant of arrest. Similar is the position with

respect to the matter as aforesaid concerning the court of the Additional Sessions Judge (F.T.C No. II), Palamau at Daltonganj. Moreover, the

order dated 27.2.2007 passed by the Additional Sessions Judge (F.T.C. II), Palamau at Daltonganj itself does indicate that without receiving any

execution report of the warrant of arrest or process issued u/s 82/83 of the Code of Criminal Procedure, the petitioners have been declared

permanent absconder which is against the provision of the Criminal Procedure Code and, therefore, both the orders dated 6.7.1996 passed by the

Chief Judicial Magistrate, Palamau at Daltonganj and the order dated 27.2.2007 passed by the Additional Sessions Judge (F.T.C. No. II),

Palamau at Daltonganj are hereby set aside.

Accordingly, this application is allowed. However, the petitioners are directed to appear before the court below within three weeks from today.

Let a copy of this order be sent to the court concerned through FAX at the cost of the petitioners.