Ravi Nath Verma, J. - (1.) THE three petitioners by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India have prayed to quash the order dated 12.5.2014 passed by learned Judicial Magistrate, whereby non -bailable warrant of arrest has been issued and also the order dated 18.8.2014 and 17.4.2015 by which process for proclamation and attachment under Sections 82 and 83 of the Code of Criminal Procedure (in short 'the Code') respectively, have been issued. The factual aspects, which is relevant for the determination of the issue involved in this writ application, in short, is that at the instance of the informant Ashok Yadav, Markachp P.S. Case No. 75 of 2009 under Sections 321/323/324/307/504/34 of the Indian Penal Code was instituted on the allegation that when on 13.5.2009 at about 7.00 p.m. he was returning to his home after taking water, the petitioners who are the accused persons with an intention to kill assaulted him. One of the accused Umesh Yadav was having Tangi in his hand, Mukesh Yadav was armed with one Chhura (knife) and Shanti Devi was having a sword in her hand and on hulla raised by the informant local people assembled there and saved his life.
(2.) IT appears that the police after due investigation submitted charge -sheet against co -accused Mukesh Yadav keeping the investigation pending against the two petitioners but later on after due investigation the case was found to be true under Sections 341/323/324/504/34 of the Indian Penal Code and supplementary charge -sheet was filed against the two other petitioners Sanjay Yadav and Shanti Devi also. The court below, thereafter, took cognizance of the offence against all the three petitioners under Sections 341/323/324/307/504/34 of the Indian Penal Code. It is also stated that after submission of supplementary charge -sheet only in bailable Sections against the petitioners, the petitioners were granted bail from police station itself. However, after taking cognizance of the offence under Section 307 of the Indian Penal Code besides other Sections, the court directed to issue summons against the petitioners. Immediately after the above direction, the case was transferred to another court, whereafter again fresh summons were directed to be issued. As the execution report of the summon was not filed in the court, the case was adjourned on several dates awaiting summons report. Later on, by order dated 16.9.2013 the case was transferred to the Court of Sub -Divisional Judicial Magistrate. The said court without waiting for the execution report of the summon directed to issue bailable warrant. Again by order dated 31.3.2014 the case was transferred to the Court of Judicial Magistrate and this court also without waiting for the execution report of the bailable warrant, directed to issue non -bailable warrant against the accused by order dated 12.6.2014. Though from the order -sheet it appears that even no requisition was filed by the Investigating Officer for issuance of non -bailable warrant and this time also without waiting for the execution report of non -bailable warrant, the court vide order dated 18.8.2014 issued proclamation under Section 82 of the Code which was issued on 11.2.2015. It further appears that without waiting for the report of the proclamation under Section 82 of the Code, the court even without a requisition from the Investigating Officer, vide order dated 17.4.2015 directed to issue process under Section 83 of the Code. Learned counsel appearing for the petitioners submitted that issuance of summons followed by issuance of bailable warrant and non -bailable warrant in a routine manner without waiting for the execution report or a requisition by the Investigating Officer clearly stipulates the non -application of judicial mind of the court below as it was passed without following the ingredients of Section 73 of the Code as well as the mandates given by the Hon'ble Supreme Court in the case of Indra Mohan Goswami & Anr. v. State of Uttranchal & Ors.; : (2007)12 SCC 1 [: 2008(1) JLJR (SC) 82]. Learned counsel further seriously contended that without recording any satisfaction or following the mandates of Section 82 and 83 of the Code declaring the accused as absconder and without waiting for the execution report of non -bailable warrant, issued proclamation under Sections 82 and the process under Section 83 of the Code clearly violating the mandates of Sections 82 and 83 of the Code and also the settled principles. Since, all the above orders were issued without application of judicial mind in a mechanical manner and being non -speaking are liable to be quashed.
(3.) CONTRARY to the aforesaid submissions, Mr. Mishra, S.C. -III relying upon a Constitution Bench judgment of the Hon'ble Supreme Court submitted that in the said judgment it has been clearly laid down that it is well within the jurisdiction and discretion of the Judicial Magistrate to issue non -bailable warrant against the accused persons if the Sections in which the court has taken cognizance, are non -bailable in nature. It was also submitted that the Hon'ble Supreme Court in the said judgment has further held that discretion has to be exercised judiciously. It was also submitted that the case was lodged in the year 2009 but even after issuance of summons, after the accused persons i.e. petitioners preferred not to appear in the case and tried to conceal themselves or evaded their arrest, the non -bailable warrant and subsequently processes were issued. So it cannot be said that the steps were taken without applying judicial mind.;