Ravi Nath Verma, J. - (1.) Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners question the legality of the orders dated 21.2.2015, 19.3.2015 and 14.7.2015 passed by learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Dhansar) P.S. Case No. 1015 of 2014 corresponding to G.R. Case No. 4694 of 2014 whereby and whereunder the warrant of arrest, the Proclamation under Ss. 82 and Processes for attachment of the properties of the petitioners under Sec. 83 of the Code of Criminal Procedure (in short 'the Code') respectively have been issued. Bereft of unnecessary details, the facts, which are necessary to be stated, are that at the instance of the informant Anil Kumar Agarwal, the aforesaid case was instituted under Ss. 406, 420 and 120 -B of the Indian Penal Code with the allegation that in the year 2011, the accused persons including the petitioners approached the informant and introduced themselves as the Managing Director and Director of M/s. Metallics Limited, Barbil, Keonjhar, Orissa and expressed their desire to purchase coal on credit and promised to pay the consideration amount soon after the delivery of coal. On the assurance of the petitioners that the amount would be given within 60 days, the informant sent coals worth Rs. 1 Crore and odds, Rs. 1 Crore 72 Lakhs and odds and Rs. 3 Crores 82 Lakhs and odds from Luky Coke Industries in between 10.3.2011 to 31.7.2011 and coal worth Rs. 4 Crores and odds and 2 Crores 94 Lakhs and odds from Ayesh Coal Trading Company and further coal worth Rs. 85 lakhs and odds from Jwala Coke Pvt. Ltd. but as the above amounts were not paid, a reminder was sent. Whereafter on 23.4.2014, Mahesh Agarwal came to his office and executed one document to the effect that they would pay Rs. 66,89,000/ - per month towards the total outstanding amount of Rs. 6,68,90,000 - and further executed to "Swikaroktinama' for the dues of Rs. 6,76,97,062/ - towards the Lucky Coke Industries and Ayesh Coal Trading Company but since no payment was made, the aforesaid case was lodged.
(2.) It appears from the order -sheet of the court below enclosed with this writ application that F.I.R. was sent to the Court on 13.10.2014 and the court fixed the date 13.11.2014 awaiting final form but as the final form was not submitted, the court fixed 25.2.2015 as the next date in anticipation of submission of final form but before the aforesaid date, the Investigating Officer filed a requisition on 21.2.2015 for issuance of warrant of arrest against the petitioners on the ground that earlier notice under Sec. 41 -A of the Code was sent to the accused -petitioners but none of them appeared before him. The prayer was made for issuance of warrant of arrest. Accordingly, the warrant of arrest was issued. It further appears that on the very next date i.e. on 19.3.2015, again on a requisition filed by the Investigating Officer along with the execution report of warrant, the proclamation under Sec. 82 of the Code was issued which was received by the I.O. on 20.3.2015. Again, a petition was filed by the I.O. on 20.6.2015 with photographs and execution report of proclamation and prayed for issuance of attachment of 3 property, which was turned down by the court below but when the Investigating Officer again filed a requisition on 14.7.2015 and prayed for issuance of processes for attachment of the property of the accused persons, the same was directed to be issued.
(3.) Learned senior counsel Mr. R.S. Majumdar, appearing for the petitioners assailing the orders of issuance of warrant of arrest, the proclamation and the process for attachment of properties of the petitioners seriously contended that all the three orders of the court below are perverse and bad in law. It was also submitted that from the service report of the notice issued under Sec. 41 -A of the Code, it would appear that the said notice was served upon the Gatekeeper or Guard of the petitioners but the requisition filed by the Investigating Officer along with the service report does not speak on which date and time, the said notice was handed over to the above person though in view of Sec. 64 of the Code, the service of notice on the servant of the house cannot be considered as valid service. Learned counsel further submitted that in view of the mandates and guidelines given by the Hon'ble Supreme Court in the cases Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Another; : (2011) 4 JLJR (SC) 385 and Inder Mohan Goswami & Anr. vs. State of Uttranchal & Ors.; [ : 2008 (1) JLJR (S.C.) 82] and Lalita Kumari vs. Govt., of U.P.; : (2014) 2 SCC 1 : [2013 (4) JLJR (SC) 505], only after issuance of summon and bailable warrant, non -bailable warrant of arrest should be issued even in cognizable offences where the period of sentence is less than seven years. Lastly it was submitted that the orders are non -speaking and without application of judicial mind. Hence, they deserve to be quashed.;