IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 25577 of 2014
Arising Out of P.S. Case No.-170 Year-2003 Thana- PATLIPUTRA District- Patna
Manish Kumar Singh, Son of Late Dr. T.P. Singh, resident of 2616 Crystal
Falls Dr. Pearland, Texas, USA- 77584.
… … Petitioner/s
Versus
1. The State of Bihar
2. Madan Mohan, resident of House No. 31, Patliputra Colony, P.S.- Patliputra,
District- Patna.
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Abhimanyu Vatsa, Advocate
For the State : Mr. M. K. Khare, A.P.P.
For the Opposite Party No. 2 : Mr. Jitendra Singh, Sr. Advocate
Mr. Rajendra Narayan Singh and
Mr. Jharkhandi Upadhyay, Advocates
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL JUDGMENT
Date : 07-03-2019
Heard learned counsel for the petitioner; learned A.P.P.
for the State and learned counsel for the opposite party no. 2.
2. Learned counsel for the petitioner is permitted to
make correction in the first paragraph of the application as well as
in the pleadings with regard to the date of the impugned order. Let
the same be done during the course of the day.
3. The petitioner has moved the Court under Section
482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as the ‘Code’) for the following relief:
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“That the petitioner is filing this
application to quash and cancel the order dated
18.4.2012 passed by learned SDJM, Patna in
Patliputra P.S. Case No. 170/2003 whereby and
whereunder the petitioner has been declared
absconder and a direction has been given to issue
permanent warrant of arrest against him and get his
name entered in the absconder’s register and upon
passing of the said order, this Hon’ble Court may be
pleased to pass such other order/orders,
direction/directions as this Hon’ble Court may
deem fit and proper in the facts and circumstances
of the case.”
4. The opposite party no. 2 had filed Patliputra P.S. Case
No. 170 of 2013, against the petitioner, his mother and brother
alleging offences under Sections 498A/406/34 of the Indian Penal
Code and 3/4 of the Dowry Prohibition Act, with regard to the
treatment meted out to his daughter who was married to the
petitioner. It appears that initially charge sheet was submitted
against the brother and mother of the petitioner and the Court after
taking cognizance has proceeded. However, later on
supplementary charge sheet was also submitted against the
petitioner and the Court had issued process and after sometime, he
has been declared an absconder.
5. Learned counsel for the petitioner submitted that
since the year 1990, he had become a non resident Indian working
and residing in the United States of America and later on he has
also acquired U.S. Citizenship in the year 1999. It was submitted
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that at no point of time did the police ever record the statement or
even contact him and, thus, behind his back, without there being a
proper investigation, supplementary charge sheet has been
submitted which itself is bad in law. Learned counsel submitted
that in any view of the matter, it was incumbent upon the Court to
ensure that the process as required under law are followed step by
step at every stage. It is the duty of the Court to ensure that the
first stage has been duly complied with before moving to the next
stage. It was submitted that at no point of time, there was any
service report before the Court with regard to either summons or
warrant being effected on the petitioner, but despite that the Court
proceeded to declare him as an absconder. Learned counsel
submitted that the same is mockery of the procedure of the Court
and clearly an abuse of the process of the Court.
6. Learned A.P.P., upon going through the Lower Court
Records submitted that there is no endorsement in the official
records to indicate that at any point of time any summons or
warrants were ever served on the petitioner.
7. Learned counsel for the opposite party no. 2 very
frankly submitted that the order impugned cannot be defended and
the Court may proceed to quash the same. However, he further
submitted that once the mother and brother of the petitioner, who
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are accused in the same case and who had challenged the order of
cognizance right till the Hon’ble Supreme Court without success,
are aware of such development, it is but natural that the petitioner
was also aware and him not appearing before the Court or
challenging any order by which he may have been aggrieved,
avoiding such appearance should also be taken judicial note of.
8. Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, the Court
finds that the order impugned cannot be sustained. Law mandates
that before a Court exercises powers for appearance of an accused,
the same has to be done as per the requirement of the provisions
under the Code which prescribe that if initially summons are
issued, there has to be materials to show that the same have been
effected in the manner known to law. Then also, if the accused
does not appear, the Court may move to the stage of issuing
warrant, which may initially be bailable or even non-bailable, and
even if such warrant is returned unserved with the requisition of
the law enforcing authority that the accused is avoiding execution
of such warrant, then the Court is required to move to the next
stage, in accordance with law and declare the accused an
absconder. In the present case, when there is a specific stand of the
petitioner that he is a citizen of the United States of America since
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the year 1999, it has to be presumed that his residence is in the
United States of America and there being nothing in the records to
indicate that such fact was taken note of or efforts were made to
effect the warrant of arrest against him through the authorities in
the United States of America, where he resides, the Court below
appears to have proceeded without being conscious of the
limitations of its power under the Code.
9. For reasons aforesaid, the application is allowed. The
order by which the petitioner has been declared to be an absconder
in Patliputra P.S. Case No. 170 of 2003, stands quashed.
10. However, the Court under its inherent power under
Section 482 of the Code, for securing the ends of justice, is
inclined to direct the petitioner to submit himself before the law in
relation to Patliputra P.S. Case No. 170 of 2003 by taking steps
which are required under the law or in the alternative to assail any
order of the Court below which he may deem fit. However, he
cannot avoid submitting to the law, which is impermissible.
11. As the Court has been informed that the petitioner is
residing in the United State of America being a citizen of that
country, the Court is inclined to grant him a grace period of three
months during which no coercive steps shall be taken against him
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to enable him, to take appropriate steps in accordance with law,
with regard to Patliputra P.S. Case No. 170 of 2003.
12. Let the Lower Courts Record be returned forthwith.
(Ahsanuddin Amanullah, J.)
P. Kumar
AFR/NAFR
U
T