The court emphasized the mandatory duty of the court to record subjective satisfaction regarding the absconding or non-cooperation of the person against whom the warrant has been issued under Section 82 Cr.P.C.

JUDGMENT :

1. Heard Mr. Siddharth Luthra learned Senior Counsel assisted by Ms. Shakshi Kakkar and Mr. Shakti Singh learned counsel for petitioner and learned A.G.A. appearing on behalf of opposite parties 1 to 3. In view of order being passed, notices to opposite party No.4 stand dispensed with.

2. Petition under Section 482 Cr.P.C. has been filed challenging the order dated 31st August, 2021 and 15th September, 2021 passed passed by Chief Judicial Magistrate, Pratapgarh initiating proceedings under Section 82(3) Cr.P.C.

3. Learned counsel for petitioner submits that petitioner was the first informant in the incident that has taken place with regard to case crime No. 407 of 2020 under Sections 147, 148, 149, 307 and 302 IPC in Police Station Kotwali Nagar, District Pratapgarh. It is submitted that petitioner was not initially named in the first information report and his name has been included only during investigation after one year after lodging of the first information report. It is submitted that an application for issuance of non bailable warrant against the petitioner was filed by the investigating officer in which non bailable warrant was issued. It is however submitted that the petitioner was not made aware of the proceedings prior to the issuance of the said warrant since his name was not included in the first information report. It is submitted that the entire proceedings as well as the impugned order have been passed behind the back of petitioner.

4. It has been further submitted that a co-accused Anurag Dubey had filed writ petition No.22124 (M/S) of 2021 challenging the order dated 15th September, 2021 under Section 82 Cr.P.C. and the said writ petition was allowed by means of judgment and order dated 28th October, 2021 quashing the order passed under Section 82 Cr.P.C. It is submitted that petitioner's case is relative to the said case.

5. Learned Senior Counsel has further more submitted that the impugned order is not in consonance with provision of Section 82 Cr.P.C. inasmuch as there is no subjective satisfaction recorded by the court with regard to petitioner not cooperating in the investigation or evading arrest. Reliance has been placed upon judgment of Hon'ble Supreme Court in the case of State through C.B.I. versus Dawood Ibrahim Kakkar reported in (2000)10 SCC 438 as well as judgment of this Court in the case of Kunwar Mahendra Pratap Singh versus State of U.P. and others, petition under Section 482 No. 2261 of 2021.

6. It has been further submitted that prior to issuance of the order under section 82 Cr.P.C., the investigating officer was required to furnish an affidavit as per judgment of this court in the case of Kunwar Mahendra Pratap Singh (supra). That having not been done, the impugned order even otherwise is unsustainable particularly since affidavit by the investigating officer was submitted subsequent to the impugned order dated 31st August, 2021 and therefore there was no material before the court concerned at the time of passing of the impugned order for recording subjective satisfaction regarding evasion of petitioner or his non cooperation during investigation.

7. Learned A.G.A. appearing on behalf of opposite parties opposed has opposed the petition with the submission that the order impugned is perfectly cogent and reasonable and in accordance with provisions of Section 82 Cr.P.,C., which therefore does not require any interference. It is submitted that the court concerned in the impugned order has clearly recorded the fact that the petitioner is not cooperating in the investigation and is evading arrest due to which order under Section 82 Cr.P.C. was required to be passed.

8. Having considered submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that initially an application was filed by the investigating officer for issuance of non bailable warrant against the petitioner whereafter non bailable warrants were issued and subsequently the order im