1. Riya Poddar @ Riya Paul, aged about 36 years, wife of Srikant Poddar v. 1. The State of Jharkhand 2. Amit Kumar Amkat, S/o –Shankar Amkat, residing at
Case Details
1 Cr.M.P. No.68 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 68 of 2023 1. Riya Poddar @ Riya Paul, aged about 36 years, wife of Srikant Poddar 2. Parvati Poddar @ Parwati Devi, aged about 57 years, W/o – Surendra Poddar 3. Srikant Poddar, aged about 35 years, S/o –Surendra Poddar All residing at H. No. 161, Ward No.09, New Colony, Near Santoshi Mandir, Bara Nimdih, P.O. –Chaibasa, P.S. –Sadar, District –West Singhbhum, PIN -833201 (Jharkhand). .... Petitioners Versus 1. The State of Jharkhand 2. Amit Kumar Amkat, S/o –Shankar Amkat, residing at New Colony, Nimdih, P.O. –Chaibasa, P.S. –Sadar, District –West Singhbhum, PIN -833201 (Jharkhand) …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For the O.P. No.2 : Mr. Amit Kr. Das, Advocate : Mr. Shiv Shankar Kumar, Addl. P.P. : Mr. Gautam Kumar, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the order dated 21.11.2022 passed by the learned Chief Judicial Magistrate, at Chaibasa, in connection with Chaibasa Sadar P.S. Case No. 113 of 2022 as also for quashing the order dated 23.12.2022, passed in connection with 2 Cr.M.P. No.68 of 2023 the said Chaibasa Sadar P.S. Case No. 113 of 2022, now pending in the court of learned Chief Judicial Magistrate, Chaibasa. 3. Perusal of the record reveals that on 21.11.2022, the learned Chief Judicial Magistrate ordered for issuance of non-bailable warrant of arrest against the petitioners and vide order dated 23.12.2022, the learned Magistrate upon being satisfied that the petitioners are absconding, passed an order issuing the proclamation under Section 82 Cr.P.C. 4. It is submitted by the learned counsel for the petitioners that the case has been instituted out of a trivial matter and the Cr.M.P. No. 4337 of 2022, filed by the petitioners for quashing the F.I.R. has been dismissed by this Court vide order dated 16.12.2022. It is next submitted that since the application seeking proclamation under Section 82 Cr.P.C. was not supported with the affidavit of the investigating officer stating the reasons, why warrant and proclamation under Section 82 Cr.P.C. is required, the learned Chief Judicial Magistrate ought not to have issued the order of proclamation. 5. In support of his contention, the learned counsel for the petitioners files two orders purported to have been passed by one Hon’ble Rajesh Singh Chouhan, Judge but the documents filed by the learned counsel for the petitioners do not show that Hon’ble Rajesh Singh Chouhan, Judge belongs to which High Court or in which High Court, the case was filed. Hence, it is submitted that order dated 21.11.2022 passed by the learned 3 Cr.M.P. No.68 of 2023 Chief Judicial Magistrate, at Chaibasa, in connection with Chaibasa Sadar P.S. Case No. 113 of 2022 as also for quashing the order dated 23.12.2022, passed in connection with the said Chaibasa Sadar P.S. Case No. 113 of 2022 be quashed and set aside. 6. Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the order dated 21.11.2022 passed by the learned Chief Judicial Magistrate, at Chaibasa, in connection with Chaibasa Sadar P.S. Case No. 113 of 2022 as also for quashing the order dated 23.12.2022, passed in connection with the said Chaibasa Sadar P.S. Case No. 113 of 2022 and submitted that by a reasoned order, the learned Chief Judicial Magistrate, Chaibasa, after taking note of the fact that the offences involved includes the offence punishable under Section 307 of the Indian Penal Code having maximum sentence of 10 years, has issued non-bailable warrant of arrest and there is absolutely no illegality in the same and accordingly, it is submitted that so far as the purported judgements of the Court relied upon by the learned counsel for the petitioner is concerned, there is no such law for the petition filed by the I.O. with a prayer for issuance of proclamation under Section 82 Cr.P.C. is required to be supported by any affidavit. Hence, it is submitted that merely because the petition for issuance of proclamation under Section 82 Cr.P.C. was not supported by 4 Cr.M.P. No.68 of 2023 the affidavit of the I.O. of the case, on that ground alone, the order dated 23.12.2022; which otherwise do not suffer from any illegality; cannot be set aside. Hence, it is submitted that this Cr.M.P. being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the contention of the petitioners that the application with a prayer for issuance of the proclamation under Section 82 Cr.P.C. must have been supported by an affidavit of the I.O. is concerned, after carefully going through Section 82 of the Code of Criminal Procedure which reads 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 5 Cr.M.P. No.68 of 2023 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, 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).] It is crystal clear that there is no such mandatory requirement imposed by the statute for swearing an affidavit by the I.O. for issuing the proclamation under Section 82 Cr.P.C., of course, if along with the proclamation under Section 82 Cr.P.C. the order for attachment of property of the person absconding under Section 83 is to be passed, simultaneously then in such case, the court may be satisfied by affidavit or otherwise. But in this case, by the order dated 23.12.2022, only the proclamation under Section 82 Cr.P.C. simpliciter has been passed. 6 Cr.M.P. No.68 of 2023 The investigating officers of the cases are police officers and they are public servants. By imposing a condition, which the legislature in its wisdom do not think it proper to impose; that is, making it mandatory that the petitioners filed by the I.O. for issue of proclamation under section 82 of the Code of Criminal Procedure, the petitioners must be supported by affidavits would certainly cause unnecessary extra burden of work upon the police officers for obtaining the proclamation under Section 82 Cr.P.C.. As Section 82 Cr.P.C. only requires the precondition for issue of the proclamation under the section; that the court has reason to believe that a person against whom a warrant has been issued by it has absconded or concealing himself so that such warrant cannot be executed, the court can issue the proclamation under Section 82 Cr.P.C. upon being satisfied about the same and under what basis of such satisfaction is to be arrived at by the court be best left to the discretion of the court concerned. Hence, this Court is not inclined to accept the submission of the learned counsel for the petitioners that merely because the petition filed by the I.O. was not supported by the affidavit on that score alone, the order by which the proclamation under Section 82 Cr.P.C. was issued be quashed. 8. After going through the materials in the record, this Court does not find any illegality in either the order dated 21.11.2022 which has been passed in terms of Section 73 of the Code of 7 Cr.M.P. No.68 of 2023 Criminal Procedure nor there is any illegality in the order dated 23.12.2022. 9. Accordingly, in the considered opinion of this Court, this is not a fit case where the order dated 21.11.2022 passed by the learned Chief Judicial Magistrate, at Chaibasa, in connection with Chaibasa Sadar P.S. Case No. 113 of 2022 or the order dated 23.12.2022, passed in connection with the said Chaibasa Sadar P.S. Case No. 113 of 2022 be quashed. 10. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated the 21st July, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)