The court emphasized the necessity of adhering to procedural requirements in issuing warrants, highlighting the importance of service reports and judicial discretion.

JUDGMENT :

Partha Sarthy, J.

1. Heard learned counsel for the petitioners and learned counsel for the State of Bihar. No one appeared on behalf of the opposite party no.2.

2. The instant application has been filed praying for quashing the order dated 20.6.2023 passed in Complaint Case no.791 of 2015 whereby the learned Additional Chief Judicial Magistrate-VII, Aurangabad was pleased to order for issuance of process under section 82 of the Cr.P.C.

3. Learned counsel for the petitioners submits that by order dated 24.8.2023, the process under section 83 of the Cr.P.C. was also issued.

4. As per the prosecution case based on the complaint filed by the opposite party no.2 on 13.8.2015 in the Court of learned Chief Judicial Magistrate, Aurangabad alleges inter alia that he is the Supervisor of Rohtas Transport Agency which looks after the booking of the vehicles inside the factory for loading and unloading work. It is stated that showing the fraudulent owner book of truck bearing registration no.BR 25G-353, the petitioners, who were the driver and the conductor, got the material loaded on the truck and took Rs.18,740/ as rent for the same. For the said purpose, they were to receive Rs.1,32,059/ after reaching the goods to Laxmi Cement Store. It is further stated that on 22.7.2015, once again showing the fraudulent papers of the owner of MH-16Q-5254, the accused loaded 420 bags of cement weighing 50 kgs each worth Rs.1,21,863/ on their truck. The complainant stated that on both the occasions, the goods loaded on the truck did not reach the destination and on making enquiries from the office, it transpired that all the documents which had been produced including the registration papers were forged and fabricated. It is in this manner that a total of 820 bags of cement having a total value of Rs.2,53,122/ have been taken away and it is on account of making enquiries in the office of the truck registration etc. that there was delay on the part of the complainant in lodging the case. It is stated that on going to the police station, the case was not registered and hence the instant complaint.

5. On the complaint filed by the opposite party no.2, Complaint Case no.791 of 2015 was registered in the Court of the learned Chief Judicial Magistrate, Aurangabad. The complainant and the witnesses were examined in support of the complaint and by order dated 13.5.2016 passed in Complaint Case no.791 of 2015, cognizance was taken under sections 406, 420 and 120B of the Indian Penal Code and summons were ordered to be issued. Requisites were filed by the complainant and summons issued on 20.5.2016 followed by bailable warrant on 12.9.2017, non-bailable warrant on 29.5.2018, process under section 82 Cr.P.C. on 20.6.2023 and process under section 83 Cr.P.C. was issued on 24.8.2023.

6. Learned counsel for the petitioners submits that the entire ordersheet of the learned trial Court of Complaint Case no.791 of 2015 has been brought on record as Annexure-P/2 to the petition. Referring to the same, it is submitted that it does not disclose service of summon nor execution of bailable warrant or non-bailable warrant against the petitioners. It is thus submitted that there being no service report of notice, the order under section 82 Cr.P.C. as also under section 83 Cr.P.C. should not have been passed and the same having been passed are illegal, not sustainable and fit to be quashed. Learned counsel for the petitioners in support of his submissions has relied on a number of judgments including that of this Court dated 8.3.2018 passed in Cr. Misc. no.629 of 2018 (Sanjay Kumar vs. The State of Bihar and Anr.).

7. The application is opposed by learned APP for the State. It is submitted by learned counsel appearing for the State that summons having been issued for appearance of the petitioners and on the petitioners not appearing that the bailable warrants were issued followed by the non-bailable warrants. On the petitioners still avoiding appearance that the process u