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Manish Kumar Singh vs State Of Bihar And Anr on 7 March, 2019

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:
Patna High Court CR. MISC. No.25577 of 2014 dt.07-03-2019
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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
Patna High Court CR. MISC. No.25577 of 2014 dt.07-03-2019
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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
Patna High Court CR. MISC. No.25577 of 2014 dt.07-03-2019
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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
Patna High Court CR. MISC. No.25577 of 2014 dt.07-03-2019
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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
Patna High Court CR. MISC. No.25577 of 2014 dt.07-03-2019
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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

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