The importance of recording reasons to believe for taking action related to the issuance of P/A and attachment, and the need for strict adherence to the provisions of law before issuing such orders.

H.N. Sarma, J.

1. Challenging the legality and validity of the impugned order dated 27.11.07 passed in GR. Case No. 1721/04 by the learned Judicial Magistrate, 1st Class, Guwahati by which P/A was directed to be issued against the petitioner, the present revision petition has been filed.

2. To put in short, the relevant facts, necessary for the purpose of adjudication of the point involved and having relevance to the present case, are that the accused/petitioner is on the basis of an FIR of the Dispur Rs. Case No. 352/04 was registered against the police. After investigation of the case, the investigating officer having found prima-facie case submitted the charge sheet against him under Section 143/447/323/506 IPC along with another co-accused.

3. On receipt of the charge sheet the learned trial court, directed to issue summon to the accused person vide order dated 10.1.07 fixing 15.3.07 for appearance. On 15.3.07 prayer for adjournment of the case having been made on behalf of the accused, the court fixed the case on 20.4.07 allowing the prayer. On that date also the such prayer for adjournment was repeated on 8.5.07. On 16.5.07, the other co-accused appeared and was allowed to go on bail. The present petitioner neither appeared nor took any steps in the case and accordingly the learned trial court directed to issue non-bailable warrant of arrest against him fixing 21.6.07 to secure his appearance. On that date also another order of NBWA was issued to the petitioner fixing 27.7.07 without recording the fate of the earlier warrant. On 27.7.07 the learned trial court passed the following order:

Accused Mantu Ahmed is absent with steps. Other accused is absent. Issue NBWA and P/A against the accused. Refix 20.9.07 for app.

4. On 20.9.07 an application was filed on behalf of the accused/petitioner by his Advocate praying for dispensing with the personal attendance of the accused and to recall the warrant of arrest so issued against him. The learned trial court rejected the said prayer as the accused was not personally present in the court, and fixed 27.11.07 for appearance. On 27.11.07 the learned trial court passed the impugned order which reads as follows:

T.M. is on deputation in conn. With in service training at G. H. Court, Accd. Mintu Ahmed is present. Other accd. Is absent Issue P/A against the other accd. Fix. 9.1.08 for app.

5. Although the instant petition is filed challenging the order dated 27.11.07 with a view to scrutiny the legality and validity of the impugned order, the power and jurisdiction of the learned Magistrate to issue P/A against the absentee accused in the manner as exercised in this case requires to be considered. For this purpose, the various provisions relating to issue of process including power and jurisdiction of the court to issue P/A as provided in the Code needs to be examined.

6. Chapter VI of the Cr.P.C. deals with the process to compel appearance.

7. Section 61 Cr.P.C. provides that every summons issued by a Court shall be in writing in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time by rule direct and shall bear the seal of the court.

8. Section 62 prescribes the procedure as to how a summon is to be served. It provides that every summon should be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant. Sub-Section 2 of Section 62 provides that summon shall be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons, if practicable. Section 64 Cr.P.C. provides interalia that where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the servi