D.K.SINHA, J. - (1.) PETITIONER has invoked the inherent power of this Court under Section 482 of the Code of Criminal Procedure for quashment of the order dated 8.8.2008, passed by the Sessions Judge, Dhanbad, by which the order dated 5.5.2008, passed by Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1436/2004 was affirmed by which non -bailable warrant of arrest was directed to be issued against the Petitioner.
(2.) PROSECUTION story in short is that complaint case bearing C.P. Case No. 1436/2004 was filed by the complainant Ashutosh Rajak against the sole accused i.e. the Petitioner herein and after inquiry, cognizance of the offence was taken under various Sections including under Sections 323/506/341 of the Indian Penal Code as also under Sections 3/4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. After taking cognizance, summons was issued at the first instance, calling upon the Petitioner to appear before the court, but the learned Judicial Magistrate by the order dated 5.5.2008, which is quoted hereunder, issued non bailable warrant of arrest against the Petitioner, Complainant is present and files his Haziri. A time petition along with vakalatnama was filed on behalf of the accused. Accused is not present in person. S.R. of summon to accused is on record as per which summons was received by the wife of the accused on 16.4.08. But in spite of clear direction in the summon to appear on 5.5.08 the accused did not appear. Under the circumstances time petition is rejected and office is directed to issue NBW against the accused. Put up on 06.06.08 for appearance. Petitioner against the said impugned order, preferred Cr. Revision No. 172/08 before the learned Sessions Judge, Dhanbad. The learned Sessions Judge, Dhanbad by order dated 8.8.2008 by speaking order dismissed the revision upholding the order passed by the Judicial Magistrate, 1st Class, Dhanbad, dated 5.5.2008 with the observation, After the cognizance of the case, the learned court below had issued summon for appearance of the applicant. Both at his residential and official address. Summons at both the places were validly served as will be evident from the service report, despite of that the applicant who happens to be a police officer, with utter disregard to the mandate of the court failed to appear before the court below. On this background non bailable warrant of arrest was issued. The code of criminal procedure provides for issuance of warrant of arrest under Section 70. This section does not distinguish between issuance of bailable or non bailable warrant of arrest. The issuance of either bailable or non bailable warrant of arrest depends upon the discretion of the issuing court who bases his decision on the facts and circumstances of the case. The applicant being a police officer even after issuance of summon did not appear before the court below. So there was reasonable apprehension in the mind of the court that the applicant will not voluntarily appear in the court. As such the order issuing non bailable warrant of arrest at this instance does not appear to be illegal. This applicant has failed to appear before the court below.
(3.) LEARNED Counsel Mr. Banerjee failed to show any illegality or irregularity in the orders impugned, referred to hereinbefore.;