Giridih v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.59 of 2022 ------ Anand Prasad @ Anandi Yadav, aged about 51 years, S/o Late Prayag Mahato, R/o Village- Pihra, Post- Pihra, P.S.- Gawan, District- Giridih. Versus The State of Jharkhand … Opposite Party … Petitioner ------ For the Petitioner For the State
Legal Reasoning
: Mr. Prashant Kr. Rai, Advocate Mr. A.K. Trivedi, Advocate : Mr. Vineet Kr. Vashistha, Spl.P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the several orders but at the outset, the learned counsel for the petitioner submits that the petitioner does not press the prayer to quash the order dated 06.02.2015 and confines the prayer to quash the orders dated 09.10.2015 and 07.08.2018 passed by the learned Judicial Magistrate-1st Class, Giridih and the learned Additional Chief Judicial Magistrate, Giridih respectively; both in connection with Forest Case No.88 of 2012. Accordingly, the prayer to quash the order dated 06.02.2015 passed in the said case is rejected as not pressed. 3. So far as the order dated 09.10.2015 passed in the said case is concerned, learned counsel for the petitioner submits that by the said order dated 09.10.2015, the proclamation under Section 82 of Cr.P.C. has been issued by the 1 Cr. M.P. No.59 of 2022 learned Judicial Magistrate-1st Class, Giridih without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and without any information available in the record that the proclamation under Section 83 of Cr.P.C. was ever made, the learned Additional Chief Judicial Magistrate, Giridih passed the order for attachment of property under Section 83 of Cr.P.C. vide order dated 07.08.2018 in the said case. Hence, it is submitted that the order dated 09.10.2015 passed by the learned Judicial Magistrate-1st Class, Giridih and the order dated 07.08.2018 passed by learned Additional Chief Judicial Magistrate, Giridih; in connection with Forest Case No.88 of 2012, are not sustainable in law. Hence, the same be quashed and set aside. 4. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer as prayed for by the petitioner for quashing the orders dated 09.10.2015 and 07.08.2018 passed by the learned Judicial Magistrate-1st Class, Giridih and the learned Additional Chief Judicial Magistrate, Giridih respectively; in connection with Forest Case No.88 of 2012 and submits that the very fact that the learned Judicial Magistrate-1st Class, Giridih has issued the proclamation under Section 82 of Cr.P.C. and the order for attachment of property under Section 83 of Cr.P.C. passed by the learned Additional Chief Judicial Magistrate, Giridih, itself shows that there were materials available in the record for the learned Judicial Magistrate-1st Class, Giridih and the learned Additional Chief Judicial Magistrate, Giridih to be satisfied that there is justification for issuance of the proclamation under Section 82 of Cr.P.C and the 2 Cr. M.P. No.59 of 2022 order for attachment of property under Section 83 of Cr.P.C. respectively. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 5. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that by now it is a settled principle of law that the court which issues the proclamation under Section 82 of Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue the proclamation under Section 82 of Cr.P.C. it must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As already indicated above since the learned Judicial Magistrate-1st Class, Giridih has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor fixed any time or place for appearance of the petitioner. Hence, this Court has no hesitation in holding that the learned Judicial Magistrate-1st Class, Giridih has committed illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirements of law. Hence, the same is not sustainable in law and the continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 09.10.2015 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Forest Case No.88 of 2012, be quashed and set aside. 6. Accordingly, the order dated 09.10.2015 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Forest Case No.88 of 2012, is quashed and set aside. 3 Cr. M.P. No.59 of 2022 7. So far as the order dated 07.08.2018 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of Cr.P.C., may for reasons to be recorded in writing at any time after the issue of the proclamation, order for attachment of any property movable or immovable or both belonging to the proclaimed person. Now, in the absence of any material in the record to suggest that the proclamation under Section 82 of Cr.P.C. was in fact made in accordance with law, certainly the learned Additional Chief Judicial Magistrate, Giridih has committed gross illegality by passing the order of attachment of property of the petitioner without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing such order of attachment. Hence, under such circumstances, this Court has no hesitation in holding that the order of attachment of the property of the petitioner dated 07.08.2018 is also not in accordance with law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 07.08.2018 passed by learned Additional Chief Judicial Magistrate, Giridih in connection with Forest Case No.88 of 2012, be quashed and set aside. 8. Accordingly, the order dated 07.08.2018 passed by learned Additional Chief Judicial Magistrate, Giridih in connection with Forest Case No.88 of 2012, is quashed and set aside. 9. The learned Additional Chief Judicial Magistrate, Giridih may pass a fresh order in accordance with law. 10.
Decision
In the result, this Cr.M.P. is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 17th of October, 2024 AFR/ Saroj 4 Cr. M.P. No.59 of 2022