@JUDGMENTTAG-ORDER
Hemant Kumar Srivastava, J.@mdashHeard learned counsel for the petitioner, learned counsel for opposite party no. 2 as well as learned Addl. Public Prosecutor for the State. In my view, this petition can be disposed off on admission stage itself. Petitioner being husband of the informant has been made accused in Gopalganj P.S. Case No. 309/2011 registered under Sections 323, 406 and 498A of the IPC.
2. Petitioner was granted privilege of regular bail provisionally till 23.2.2012 vide order dated 23.1.2012 passed by this court in Cr. Misc. No. 3552/2012 with a direction that he will make himself present before the learned lower court on 30.1.2012 and will offer for settlement and the learned lower court on that very score, will notice Niou Kumari and then will try to resolve the dispute amongst the parties and if there happens to be any laches perceived by the learned lower court or cunningness on his part, learned court below will be at liberty to reject the prayer for confirmation subsequently, so made, contrary to it, will confirm.
3. In pursuance of the above stated order, petitioner furnished bail bonds before learned lower court on 30.1.2012 and furthermore, learned trial court issued notice to informant fixing 23.2.2012 but the record was put up before learned trial court on 13.2.2012 and on the aforesaid date, no pairvi was made on behalf of the petitioner as well as rest accused persons. On 23.2.2012 attendance on behalf of the informant as well as petitioner was filed but informant filed a petition before trial court for taking action against the petitioner whereas petitioner filed a petition for confirmation of his provisional bail in the light of order of this court and later on, case was posted on 27.2.2012 and on 27.2.2012, attendance was filed on behalf of the petitioner and the case was adjourned fixing on 29.2.2012. Again, on 29.2.2012, two accused persons filed their attendance whereas one accused was absent and accordingly, case was adjourned till 12.3.2012. On 12.3.2012, petitioner filed his attendance and also filed a petition for confirmation of provisional bail and the case was adjourned till 19.3.2012. On 19.3.2012, none of the accused including the petitioner made pairvi and the case was adjourned to 21.3.2012. Again on 21.3.2012, a petition for confirmation of provisional bail was filed on behalf of the petitioner and learned trial court directed the petitioner to produce order of extension of provisional bail as the period of provisional bail had already been expired on 23.2.2012 and the case was posted on 27.3.2012. On 27.3.2012, attendance on behalf of the petitioner Anup Kumar Upadhayay and one accused Gita Devi was filed but when the case was called out, petitioner as well as abovestated accused Gita Devi did not appear before the learned trial court as a result of which learned trial court cancelled the bail bonds of the petitioner as well as co-accused Gita Devi noticing this fact that a fake attendance was filed on their behalf and also issued non-bailable warrant of arrest alongwith process under Sections 82 and 83 of the Cr. P.C.
4. Petitioner being aggrieved by the aforesaid order dated 27.3.2012 preferred this petition u/s 482 of the Cr.P.C. for quashing the abovestated order dated 27.3.2012.
5. The contention of learned counsel for the petitioner is that learned trial court committed an error in issuance of non-bailable warrant of arrest as well as processes under Sections 82 and 83 of the Cr.P.C. simultaneously and furthermore, learned trial court did not take notice of this fact that on previous dates petitioner had appeared in learned trial court in person and made prayer for confirmation of provisional bail as the informant was not ready to lead her conjugal life with the petitioner. It is further contended by him that in the case of
6. In course of hearing learned counsel for the petitioner fairly conceded this fact that court may issue warrant of arrest to procure attendance of accused but in the present case, no opportunity of being heard was given to the petitioner before passing the order of cancellation of his bail bonds.
7. Learned counsel for the informant submits that petitioner has violated the terms and conditions given by this court in Cr. Misc. No. 3552/2012 and, therefore, learned trial court has rightly cancelled the bail bonds of the petitioner as well as other accused and also rightly ordered for issuance of non-bailable warrant of arrest as well processes under Sections 82 and 83 of the Cr.P.C. to procure the attendance of the petitioner as well as other accused.
8. Learned Addl. Public Prosecutor also echoed the abovestated submissions and submitted that there is no bar in issuance of non-bailable warrant of arrest as well as processes under Sections 82 and 83 of the Cr.P.C. simultaneously.
9. Having heard the parties I have gone through the record as well as relevant provisions of the Code of Criminal Procedure. No doubt, court can exercise its power by issuing non-bailable warrant of arrest as well as processes under Sections 82 and 83 of the Cr.P.C. simultaneously to procure the attendance of accused but before issuance of process u/s 82 of the Cr.P.C. before completion of 30 days from the date of issuance of warrant of arrest, the court must come to this conclusion that the accused is willfully and intentionally absconding and concealing himself.
10. In the present case, learned lower court has, nowhere, mentioned in the impugned order that the petitioner is intentionally and willfully avoiding his arrest rather the fact demonstrates contrary because admittedly, prior to cancellation of bail bonds, petitioner had made his appearance consistently before learned trial court. In my view, learned trial court has committed an error in issuing processes under Sections 82 and 83 of the Cr.P.C. simultaneously. So far as issuance of non-bailable warrant of arrest is concerned, the said part of the impugned order is not seriously challenged by learned counsel for the petitioner rather in course of hearing he admitted this fact that learned court below has rightly issued non-bailable warrant of arrest against the petitioner because the period of provisional bail of the petitioner had already been expired on 23.2.2012.
11. In view of the aforesaid discussions, as well as facts and circumstances of this case, this petition stands disposed of with modification in the impugned order to this extent that the issuance of processes under Sections 82 and 83 of the Cr.P.C. is, hereby, quashed. In the abovestated manner, this petition stands disposed of at the admission stage itself.
