Surendra Prasad Singh @ Surender Singh and Anr vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.13916 of 2019
Arising Out of PS. Case No.-3 Year-1998 Thana- SC/ST District- Gaya
======================================================
1. Surendra Prasad Singh @ Surender Singh s/o Late Kailash Singh R/v and
P.O.- Kari Soba, P.S- Wajirganj, Distt.- Gaya
2. Shekhar Kumar @ Niraj Kumar s/o Surendra Prasad Singh @ Surendra
Singh R/v and P.O.- Kari Soba, P.S- Wajirganj, Distt.- Gaya
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Manish Kumar No, Adv.
For the Opposite Party/s : Mr. Navin Kr. Pandey, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 01-09-2026
Heard the parties.
2. The present quashing petition has been
preferred to quash the order dated 01.12.2017 passed in
SC/ST Trial No. 127 of 2017 arising out of SC/ST P.S. Case
No. 03 of 1998 registered for offence under sections 448,
380, 323, 504 of I.P.C. and section 3(i)(r) of SC/ST (POA)
Act, passed by learned Special Judge, SC/ST Act Gaya
whereby and where under the petitioners have been declared
absconder without following any legal remedies/provisions.
3. As per FIR, which is founded upon complaint
petition, filed by complainant/ informant before learned CJM,

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Gaya through complaint petition no. 749 of 1997 filed on
15.01.1998, alleged that the accused person on 20.11.1997
while he was outside his home in connection with some
professional work, took away food grains from his PDS shop
which was kept for distribution amongst the school. When
complainant returned to his home, he was informed by his
wife regarding occurrence and thereafter aforesaid complaint
was filed which was sent to concerned police station to lodge
FIR and further investigation.
4. After completion of investigation, police
submitted charge-sheet against this petitioner for the
offences punishable under section 448, 380, 323, 504 of
I.P.C. and section 3(i)(r) of SC & ST (POA) Act, vide
charge-sheet no. 13 of 2005 dated 27.05.2006.
5. Upon perusal of materials collected during
investigation, learned Jurisdictional Magistrate took
cognizance for the offences vide order dated 14.08.2006.
6. It is submitted by learned counsel for the
petitioner that the petitioner was granted bail by learned trial
court vide its order dated 22.11.1998 and he never misused

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his bail till 2007. It is submitted that he was outside in
connection of his professional engagement. In meantime the
bailable warrant was issued on 30.04.2007, whereafter the
NBW was also issued on 20.07.2007, and thereafter 9 years
on 01.12.2017, process under Section 82 and 83 of Cr.P.C.
was initiated against him. It is submitted that at no point of
time, neither bailable warrant nor NBW, was served upon
petitioner and proceeding under Section 82 and 83 of
Cr.P.C. was initiated against the petitioner, simultaneously,
which is otherwise bad in eyes of law. In this connection
learned counsel relied upon the legal report of Hon’ble
Supreme Court as available through Serious Fraud
Investigation Office vs. Aditya Sarda [(2025) SCC
OnLine SC 764] and Inder Mohan Goswami and Anr.
vs. State of Uttranchal and Ors. [(2007) 12 SCC 1].
7. In this connection it would be apposite to
reproduce the para nos. of 28 and 29, Serious Fraud
Investigation Office case (supra), which is as under:-
“ 28. A faint attempt was made by the learned
counsels for the respondents to rely upon the
decision in case the of Tarsem Lal v. Directorate of
Enforcement Jalandhar Zonal Office [(2024) 7 SCC
61; 2024 SCC OnLine SC 971.] , to submit that if

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the respondents were not arrested by the Serious
Fraud Investigation Office during the course of
investigation till the filing of the complaint, the
special court while taking cognizance of the alleged
offences should have issued a summons only to the
respondents-accused and not a warrant. The said
submission is bereft of merits. As discussed earlier,
as per section 204, of the Code of Criminal
Procedure in a complaint case, which appears to be a
warrant case, the court taking cognizance of the
offence, has the discretion to issue warrant or
summons as it thinks fit, for causing the accused to
be brought or to appear before it. As held by three-
judge Bench of this court in the case of Inder Mohan
Goswami [Inder Mohan Goswami v. State of
Uttaranchal, (2007) 12 SCC 1; (2008) 1 SCC (Cri)
259; 2007 SCC OnLine SC 1224.] , the court is
empowered to issue even a non-bailable warrant to
bring a person to the court, when it is reasonable for
the court to believe that the person will not
voluntarily appear in the court or the police
authorities are unable to find the person to serve him
with a summons. There cannot be a strait jacket
formula, as sought to be submitted by the learned
advocates for the respondents that the court must
first issue a summons even in case of a warrant
case, irrespective of the gravity or seriousness of the
offence. As well settled by now, whether the
attendance of the accused can be best secured by
issuing a bailable warrant or non-bailable warrant,
would be a matter, which entirely rests at the
discretion of the concerned court [State of U.P. v.
Poosu, (1976) 3 SCC 1; 1976 SCC (Cri) 368; 1976
SCC OnLine SC 142 (paragraph 49).] . Although the
discretion should be exercised judiciously, diverse
considerations such as the nature and seriousness of
the offence, the circumstances peculiar to the
accused, possibility of his concealing or absconding,
larger interest of public and state, etc., also must be
seriously considered by the court.
29. In the instant case, the special court considering
the seriousness of the alleged offences had initially
issued bailable warrants, however, the respondents
kept on avoiding the execution of such warrants and
did not appear before the special court though fully

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aware about the pendency of the complaint
proceedings against them. The special court
therefore had to pass detailed orders from time to
time for the issuance of non-bailable warrants, and
thereafter had also initiated the proclamation
proceedings under section 82 of the Code, for
requiring the respondents to appear before it. The
High Court however without paying any heed to the
proceedings conducted by the special court against
the respondents, and ignoring the well settled legal
position, granted anticipatory bail to the respondents
vide the impugned orders. As discussed earlier, the
said orders being perverse and untenable at law,
cannot be allowed to be sustained, and deserve to be
set aside.”
8.
In this connection it would be apposite to
52, 54, 55, 56 and 57 Inder
reproduce the para nos. of
Mohan Goswami case (supra), which is as under:-
“52. Just as liberty is precious for an individual so is
the interest of the society in maintaining law and
order. Both are extremely important for the survival
of a civilised society. Sometimes in the larger interest
of the public and the State it becomes absolutely
imperative to curtail freedom of an individual for a
certain period, only then the non-bailable warrants
should be issued.
54. As far as possible, if the court is of the opinion
that a summon will suffice in getting the appearance
of the accused in the court, the summon or the
bailable warrants should be preferred. The warrants
either bailable or non-bailable should never be issued
without proper scrutiny of facts and complete
application of mind, due to the extremely serious
consequences and ramifications which ensue on
issuance of warrants. The court must very carefully
examine whether the criminal complaint or FIR has
not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court
should direct serving of the summons along with the
copy of the complaint. If the accused seem to be
avoiding the summons, the court, in the second
instance should issue bailable warrant. In the third
instance, when the court is fully satisfied that the
accused is avoiding the court's proceeding

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intentionally, the process of issuance of the non-
bailable warrant should be resorted to. Personal
liberty is paramount, therefore, we caution courts at
the first and second instance to refrain from issuing
non-bailable warrants.
56. The power being discretionary must be exercised
judiciously with extreme care and caution. The court
should properly balance both personal liberty and
societal interest before issuing warrants. There cannot
be any straitjacket formula for issuance of warrants
but as a general rule, unless an accused is charged
with the commission of an offence of a heinous crime
and it is feared that he is likely to tamper or destroy
the evidence or is likely to evade the process of law,
issuance of non-bailable warrants should be avoided.
57. The court should try to maintain proper balance
between individual liberty and the interest of the
public and the State while issuing non-bailable
warrant.”
9. For better understanding of the fact in view of
submission as advanced by learned counsel for the
petitioner, it would be apposite to reproduce order dated
07.09.2017 and 01.12.2017, which is as under:-
अभभयुकत अनुपभससत है। नयायालय
“07.09.2017
अभभयुकतोके भवरद 82/83 कासमारएसएसपीगयाके
माधयमसेभनगरतकरे।

वादभदनांक कोउपभससभतहेतु।
1.12.17
“01.12.2017 सभीदोनोअभभयुकतसुरेनद्रभसंहएवंभनरज
कुमारअनुपभससतहै।
दोनोअभभयुकतोकेभवरदनयायालयदारासाराप्रभक्रया
पुरीकीजाचुकीहै।भफरभीअभभयुकतनयायालयमे
उपभससतनहींहोपायाहै।
अतःऐसीपभरभससभतमेदोनोअभभयुकतोकोफरारघोभषत
भकयाजाताहै।
कायारलयदोनोअभभयुकतोकेभवरदससाईवारंटभनगरतकरे
तसाफरारपंजीमेपंजीबदकरे।
अभभलेखकोअभभलेखागारमेजमाकरे।
"
10. It appears from perusal of aforesaid orders

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that learned trial court, ordered to issue both process i.e.,
under Section 82 and 83 of Cr.P.C., simultaneously vide
order dated 07.09.2017, which also appears contrary to the
legal provisions, in this context it would be apposite to
reproduce provisions of Section 82 and 83 of Cr.P.C., which
is as under:-
“82. Proclamation for person absconding.-
(1) If any Court has reason to believe (whether after
taking evidence or not) that any person against whom a
warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be
executed, such Court may publish a written proclamation
requiring him to appear at a specified place and at a
specified time not less than thirty days from the date of
publishing such proclamation.
(2) The proclamation shall be published as follows:
(i) (a) it shall be publicly read in some conspicuous place
of the town or village in which such person ordinarily
resides;
(b) it shall be affixed to some conspicuous part of the
house or homestead in which such person ordinarily
resides or to some conspicuous place of such town or
village;
(c) a copy thereof shall be affixed to some conspicuous
part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper
circulating in the place in which such person ordinarily
resides.
(3) A statement in writing by the Court issuing the
proclamation to the effect that the proclamation was duly
published on a specified day, in the manner specified in
clause (i) of sub-section (2), shall be conclusive evidence
that the requirements of this section have been complied
with, and that the proclamation was published on such
day.
[(4) Where a proclamation published under sub-section
(1) is in respect of a person accused of an offence
punishable under section 302, 304, 364, 367, 382, 392,

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393, 394, 395, 396, 397, 398, 399, 400, 402, 436,
449, 459 or 460 of the Indian Penal Code (45 of 1860),
and such person fails to appear at the specified place and
time required by the proclamation, the Court may, after
making such inquiry as it thinks fit, pronounce him a
proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply
to a declaration made by the Court under sub-section (4)
as they apply to the proclamation published under sub-
section (1).]
83. Attachment of property of person absconding.-
(1) The Court issuing a proclamation under section 82
may, for reasons to be recorded in writing, at any time
after the issue of the proclamation, order the attachment
of any property, movable or immovable, or both,
belonging to the proclaimed person:
Provided that where at the time of the issue of the
proclamation the Court is satisfied, by affidavit or
otherwise, that the person in relation to whom the
proclamation is to be issued,—
(a) is about to dispose of the whole or any part of his
property, or
(b) is about to remove the whole or any part of his
property from the local jurisdiction of the Court, it may
order the attachment simultaneously with the issue of the
proclamation.
(2) Such order shall authorise the attachment of any
property belonging to such person within the district in
which it is made; and it shall authorise the attachment of
any property belonging to such person without such
district when endorsed by the District Magistrate within
whose district such property is situate.
(3) If the property ordered to be attached is a debt or
other movable property, the attachment under this section
shall be made—
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such
property to the proclaimed person or to any one on his
behalf; or
(d) by all or any two of such methods, as the Court thinks
fit.
(4) If the property ordered to be attached is immovable,
the attachment under this section shall, in the case of
land paying revenue to the State Government, be made
through the Collector of the district in which the land is
situate, and in all other cases-

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(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent
on delivery of property to the proclaimed person or to any
one on his behalf; or
(d) by all or any two of such methods, as the Court thinks
fit.
(5) If the property ordered to be attached consists of live-
stock or is of a perishable nature, the Court may, if it
thinks it expedient, order immediate sale thereof, and in
such case the proceeds of the sale shall abide the order of
the Court.
(6) The powers, duties and liabilities of a receiver
appointed under this section shall be the same as those of
a receiver appointed under the Code of Civil Procedure,
1908 (5 of 1908).”
11. From the perusal of order dated 01.12.2017,
it appears that the court gathered impression that all legal
procedure as to inform petitioner/ accused regarding present
pending proceedings, was completed/exhausted, and
thereafter straightaway petitioner was declared as
permanent absconder.
12. In view of aforesaid as through order dated
07.09.2017 both process i.e., under Section 82 and 83 of
Cr.P.C. was initiated against petitioner simultaneously, which
is contrary to law and further as without any service report,
as to suggest that process upon the petitioner, which was
issued through SSP, Gaya, was duly served upon him
straightaway declaring permanent absconder vide order
dated 01.12.2017, is non-convincing and contrary to the

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provisions of law, particularly, in view of Serious Fraud
Investigation Office and Inder Mohan Goswami case
(supra), accordingly, the impugned cognizance order dated
01.12.2017 qua above-named petitioner as passed by
learned Special Judge, SC/ST Act Gaya is hereby set
aside/quashed.
13. In view of aforesaid, present petition stands
allowed.
14. TCR, if any, be returned to learned trial court
alongwith the copy of this judgment.


(Chandra Shekhar Jha, J)
Sudha/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 02.09.2026
Transmission Date 02.09.2026