The main legal point established is that a warrant of arrest can be issued against a person accused of a non-bailable offence, and the exercise of powers under section 82 Cr.P.C. must consider the nature of allegations, conduct of the accused, and severity of punishment.

JUDGMENT :

SHREE CHANDRASHEKHAR, J.

1. The petitioner seeks quashing of the order dated 23.12.2015 by which warrant of arrest has been issued and order dated 19.01.2016 by which processes under section 82 Cr.P.C. have been issued against him.

2. At the out-set it needs to be recorded that to a pointed query from the Court whether the petitioner after this quash-petition was filed on 08.03.2016 has filed any bail application or not, Mr. P.P.N. Roy, the learned Senior counsel for the petitioner submits that he has spoken to the pairvikar who has sworn the affidavit in support of this quash-petition and every time he has been informed that the petitioner would very soon contact him, but he never turned up.

3. Mr. P.P.N. Roy, the learned Senior Counsel for the petitioner, referring to the judgments in Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1 and several other judgments, submits that mandatory conditions under section 73 Cr.P.C. are not complied still the Magistrate has issued warrant of arrest by the impugned order dated 23.12.2015. It is further submitted that the order dated 19.01.2016 does not disclose proper application of mind by the Magistrate.

4. The contentions raised on behalf of the petitioner are bereft of merits. A bare reading of section 73 Cr.P.C. makes it abundantly clear that a warrant of arrest can be issued against a person who is an accused of a non-bailable offence. The order dated 28.10.2015 discloses that not only a requisition was before the learned Magistrate, the material produced before him included confessional statement of co-accused Gautam Mandal. Thereafter, other accused persons have also given their confessional statements. The order dated 23.12.2015 by which warrant of arrest has been issued records that the entire case-diary was produced by the Investigating Officer and there were sufficient materials on record for issuing NBW against the accused-petitioner. Mr. Suraj Verma, the learned A.P.P. submits that it has been recorded in the case-diary that the petitioner has been evading arrest and concealing himself so that non-bailable warrant of arrest is not executed.

5. No doubt, exercise of powers under section 82 Cr.P.C. visits an accused with serious consequences; one of the consequences is that an accused is rendered disentitle for benefits under section 438 Cr.P.C. in view of the judgment in Lavesh vs. State NCT of Delhi, (2012) 8 SCC 730, however, challenge to the orders by which processes under section 82 Cr.P.C. and/or under section 83 Cr.P.C. have been issued must be substantial and not only technical. On mere technicality an accused cannot be extended benefits of mistake, if any, committed by the Magistrate in not recording the complete details of the case in every order. The nature of allegations, the manner of occurrence, conduct of the accused, severity of punishment etc. are the relevant factors which have to be kept in mind while exercising the inherent powers under section 482 Cr.P.C.

6. The petitioner is an accused for the offence punishable under section 302/120B r/w section 34 IPC and under section 27 of the Arms Act. He is a named accused in the First Information Report. He is not only absconding after registration of the First Information Report, after filing of this quash-petition no step has been taken by him in this matter.

7. In the above facts, I am not inclined to interfere in this matter and, accordingly, Cr. M.P. No. 574 of 2016 is dismissed.

8. In view of the fact that the petitioner never moved the court for bail/anticipatory bail and has been absconding since registration of the First Information Report; he is now before this Court, the pairvikar who has sworn the affidavit in support of this quash-petition shall within four weeks appear before the Investigating Officer and disclose the present address of the accused-petitioner.

9. Let a copy of this order be given to the learned A.P.P. and sent to the pairvikar who has sworn affidavi