ORDER :

1. Instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), involves challenge to the order dated 16.05.2022, passed by learned Special Metropolitan Magistrate, No.10 (N.I. Act Cases), Jodhpur Metropolitan (hereinafter referred to as ‘the trial Court’) whereby the petitioner has been declared absconder and proceedings under Sections 82 and 83 of the Code have been initiated.

2. Mr. Kotwani, learned counsel for the petitioner, invited Court’s attention towards the proceedings of the trial Court and contended that the petitioner has never received any summons issued by the trial Court. He submitted that the fact that he never received any summons can be deciphered from a simple reading of the order impugned dated 16.05.2022, inasmuch as the trial Court itself has proceeded on conjectures, without recording any finding as to when the petitioner was served with the summons.

3. It was argued that without recording its satisfaction about petitioner’s intention to avoid the proceedings or to abscond, the trial Court has initiated proceedings under Sections 82 and 83 of the Code and issued standing warrant against the petitioner, ignoring the facts and law involved in the present case.

4. Mr. Bishnoi, learned Public Prosecutor submitted that the petitioner, despite residing in Jodhpur, has intentionally avoided the service of the summons and, therefore, the order passed by the trial Court is perfectly just and valid.

5. Heard. Perused the material available on record.

6. Having heard learned counsel for the petitioner and upon perusal of the order-sheets, which have been placed on record by the petitioner and the impugned order dated 16.05.2022, this Court is of the considered view that the trial Court has erred in issuing standing warrant to the petitioner and initiating proceedings under Sections 82 and 83 of the Code.

7. The court below firstly issued summon against the present petitioner making it returnable on 05.02.2020. On 05.02.2020, the Presiding Officer was on leave and the case was adjourned to 05.03.2020. On 05.03.2020, noticing that despite summons having been served, the petitioner has not appeared, the Court below issued bailable warrant. On 03.09.2020 the court below noted that the bailable warrant dated 05.03.2020 had not even been issued, thus directed the office to do the needful immediately.

8. Surprisingly, on 02.11.2020 the court below noted that the bailable warrant dated 05.03.2020 has not been served (thereby implying that the same has been issued) however, on 04.01.2021 it once again, noted that the bailable warrant dated 05.03.2020 has not been issued so far and observed that the needful be done immediately. On 02.03.2021 the court below noted that the bailable warrant dated 05.03.2020 has been returned unserved/unexecuted and the same be served immediately. On 14.09.2021 the court below adjourned the case awaiting appearance of the accused till the next date of hearing (26.11.2021). On 26.11.2021 and 08.03.2022, same orders (as 14.09.2021) were passed. And, finally on 16.05.2022 the trial Court issued a standing warrant against the petitioner while noting that the petitioner appears to be an absconder who has been dodging the bailable warrant and in the immediate future there is no possibility of securing his presence. The court simultaneously ordered that proceedings under sections 82 and 83 of the Code be initiated against him.

9. It is pertinent to note that the court below passed the order dated 16.05.2022 simply because it observed/found that the petitioner has not appeared on the dates fixed by it, without even examining or recording as to whether bailable warrant has been served or not. At this stage it would be relevant to discuss the diligence required of the court before proceeding under sections 82 and 83 of the Code.

10. Section 82 and 83 of the Code read thus:

“82. Proclamation for person absconding.—(1) If any Court has reason to believe