- (1.) THE petitioner has prayed for quashing the order dated 30.6.2008 passed in G.R. Case No. 1711 of 1999 corresponding to T.R. No. 292 of 2008 by Sub Divisional Judicial Magistrate, Hazaribag, whereby non -bailable warrant of arrest was issued against him without cancelling the bail bond furnished by the petitioner. He has also prayed for quashing the order dated 15.9.2008, whereby processes under Sections 82 -83 of the Cr.P.C. have been issued without awaiting the service report of non -bailable warrant. According to the petitioner he was earlier granted bail by this Court in B.A. No. 3931 of 2005 vide order dated 13.7.2005. The petitioner, thereafter, furnished bail bond on 14.7.2005, which was accepted by the learned court below and the petitioner was released from the custody. Subsequently, the petitioner challenged the entire criminal proceeding of the said G.R. No. 1711 of 1999 before this Court in W.P.(Cr.) No.156 of 2005. By order dated 17.6.2005 passed in the said writ petition, proceeding of G.R. No. 1711 of 1999 was stayed. Finally writ petition was heard and dismissed on merit vide order dated 4.4.2008. The next date fixed before the learned Sub Divisional Judicial Magistrate was 30.6.2008. On that date without cancelling the bail bond, a non -bailable warrant of arrest was issued against the petitioner. The petitioner, subsequently, came to know that without awaiting the service report of the said warrant the learned Magistrate issued processes under Sections 82 -83, Cr.P.C. by his order dated 15.9.2008.
(2.) LEARNED counsel for the petitioner submitted that the said orders are wholly illegal and have been passed without application of judicial mind. The petitioner was all along on bail and criminal proceeding before the learned court below was stayed. The petitioner should have been given an opportunity for appearing in the court by fixing a date for that purpose in his presence. Without doing so, the learned Magistrate issued the non -bailable warrant behind the back of the petitioner, though the petitioner had never misused the privilege of bail before the said date. It has been submitted that the petitioner is aged about more than seventy years and is a retired doctor and he is ready to appear on each and every date, as and when his attendance is required in the court. Learned A.P.P. opposed the petition and submitted that though the petitioner was granted bail in the case it was his duty to appear on 30.6.2008, as the writ petition in which the order of stay of the proceeding was passed, was already dismissed on 4.4.2008. Learned Magistrate has, thus, not committed any illegality in issuing the warrant or the processes under Section 82 -83 of the Cr.P.C.; as the petitioner failed to appear in the court below after vacating the order of stay. I have heard learned counsel for the parties and considered the facts and materials on record. The petitioner was earlier granted bail by this Court vide order dated 13.7.2005 (Annexure -2). It is evident from order dated 17.6.2005 passed in W.P.(Cr) No. 156 of 2005 that further proceeding in G.R. No. 1711 of 1999 was stayed. Since the proceeding was stayed and the petitioner was not in touch with the record of the learned court below, he was not expected to know about the next date fixed i.e. 30.6.2008. I, therefore, find substance in the submissions of the learned counsel for the petitioner that non -appearance on the said date does not amount misuse of privilege of bail on the part of the petitioner. Learned Magistrate, in stead of issuing of non -bailable warrant of arrest on the very first date, could have informed the date of appearance and for further proceeding to the petitioner or his counsel.
(3.) IN view of the said peculiar facts, the petitioner is given liberty to surrender before the court below within a period of two weeks. If the petitioner surrenders, he shall be released on bail on the same bail bond or on fresh bail bond depending to the satisfaction of the learned court below. This petition is disposed of with the aforesaid terms.;