ORDER

The petitioners are accused persons against whom a Court complaint was lodged by the Respondent No. 2 on 1st of July, 2022 before the learned Chief Judicial Magistrate, Gaya. On the basis of the said complaint, the learned Chief Judicial Magistrate took cognizance and transferred the case under Section 190(1)(a) to the Court of learned Judicial Magistrate, 1st Class, Gaya for further proceeding. On 29th of July, 2022, the complainant and six others witnesses on behalf of the prosecution were examined and learned Magistrate took cognizance of offence under Sections 406 and 420 of the Indian Penal Code against the accused persons and issued process vide order dated 27th of January, 2023. Though no summons was served upon the petitioners, the learned Magistrate issued bailable warrant on 1st of July, 2023 and subsequently, non-bailable warrant was issued without the receipt of non execution report of bailable warrant on 22nd of September, 2023, fixing 7th of December, 2023 for execution report of non-bailable warrant. No non-bailable warrant was executed against the petitioners but on 21st of February, 2024, process under Section 82 of the Cr.P.C. was initiated by the learned Magistrate against the petitioners. On the basis of process under Section 82 of the Code of Criminal Procedure, the Police Officers sealed the premises of accused on 13th of April, 2024. The petitioners apprehending their arrest in Complaint Case No. 967 of 2022, registered under Sections 406 and 420 of the Indian Penal Code, filed application for anticipatory bail before the learned Sessions Judge, Gaya, which has been rejected by the learned Additional Sessions Judge-I, Gaya vide order dated 3rd of May, 2024.

2. It is submitted on behalf of the petitioners that the entire action on the part of the respondent authorities is arbitrary and a glaring example of colourable exercise of power. Therefore, by filing the instant writ petition, the petitioners have prayed for the following reliefs:—

i. For issuance of direction to judicial officer for securing service of process before further proceeding.

ii For setting aside the order of bailable warrant dated 01.07.2023 and non bailable warrant dated 22.09.2023, issued against the petitioners without service of earlier process.

iii For issuance of order for recalling the order passed under Section 82 of the Criminal Procedure Code dated 10.01.2024.

iv. For issuance of order to unlock the premise of the petitioner which has been locked by jurisdictional police officers in utter disregard of law.

v. For any other relief whatsoever this Hon'ble Court feels proper in the light of the available facts.

3. At the time of hearing of the instant writ petition a preliminary question of maintainability arose to the effect as to whether against a judicial order passed by the learned Judicial Magistrate in exercise of his judicial functions, a writ petition is maintainable or not.

4. The learned Advocate on behalf of the petitioners submits that the writ petition is maintainable when the order passed by the learned Magistrate appears to be an abuse of process of law and is passed only to harass the accused. In that case, the judicial order can be quashed in exercise of powers under Article 226 of the Constitution of India or in exercise of powers under Section 482 of the Cr.P.C.

5. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in the case of Kapil Agarwal & Ors. vs. Sanjay Sharma & Ors., reported in (2021) 5 SCC 524 [: 2021 (2) BLJ 275 (SC)].

6. The learned Advocate appearing on behalf of the petitioners also refers to another case in Mohammad Wajid & Anr. vs. State of U.P. & Ors., reported in (2023) SCC OnLine SC 951. It is observed in the above-mentioned report in paragraphs 32 to 34 as hereunder:—

“32. However, as observed earlier, the entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by th