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Judgment
By this petition, under Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India, the petitioner/accused
namely, Zawlthangkhum Hmar has prayed for setting aside and quashing of the impugned order, dated 24.04.2017, passed by the learned Chief
Judicial Magistrate, Karimganj in C.R. Case No.37 C/2016, whereby, non-bailable warrant of arrest and proclamation and attachment orders have
been issued against the petitioner.
Heard Mr. A.F.N.U. Mollah, learned counsel appearing for the petitioner and also heard Mr. B. Gogoi, learned Addl. P.P. for the State respondent
No.1.
Mr. Mollah, learned counsel for the petitioner submits that the case is related to an offence allegedly committed under Section 138 of the Negotiable
Instruments Act, 1881, by the petitioner. The learned counsel further submits that the learned Court below took cognizance of the said alleged offence
vide order, dated 03.02.2017 and issued summons to the petitioner and further, by order, dated 20.02.2018, directed the Executive Engineer, PWD,
NH Division, Goalpara, Assam, to attach the salary of the petitioner to compel his appearance before the learned Court below. It is also submitted that
no summon has so far been served to the petitioner, although he is willing to appear before the learned Court below.
Mr. Mollah submits that non-bailable warrant of arrest has been issued by the learned Court below and as such, the petitioner is apprehending his
arrest in connection with the said complaint case without any fault on his part. Mr. Mollah further submits that issue of non-bailable warrant of arrest
without first serving summons on the accused is an illegality and therefore, prays for setting aside and quashing of the impugned order, dated
24.05.2017, passed in C.R. Case No. 37 C/2016, by the learned Chief Judicial Magistrate, Karimganj and further, in the interim to stay the execution
of the warrant of arrest issued against him.
Mr. B. Gogoi, learned Addl. Public Prosecutor, fairly submits that he has no objection against quashment of the impugned order of the learned
Court below as non-bailable warrant of arrest with proclamation and attachment orders have been issued by the learned Court below without service
of summons on the petitioner/accused in the case. Mr. Gogoi further submits that the petitioner/accused may be directed to appear before the learned
Court below on the date fixed that is on 29.03.2018 and till then execution of the process may be stayed.
It may pertinently be mentioned that 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. Section 87 Cr.P.C., however, says that a Court may in its discretion issue a warrant, with or without bail in lieu
of or in addition to a summons against the accused or a witness.
Simultaneous issue of warrant of arrest and proclamation without service of summons before that, in the backdrop of the facts averred in the
petition, appears to be contrary to law.
Considered thus, the contentions made in the petition, supported by an affidavit and hearing the learned counsels of both the sides, it appears that
the impugned order was passed without following the aforesaid provisions prescribed for compelling the appearance of the petitioner/accused.
Therefore, the impugned order, dated 24.04.2017, passed by the learned Chief Judicial Magistrate, Karimgang in C.R. Case No. 37 C/2016, is set
aside and quashed.
The petitioner/accused is directed to appear before the learned Court below on the date fixed, that is, on 29.03.2018, by the order, dated
20.02.2018 and shall apply for regular bail, if so advised. The petition stands disposed of.