Jabir Ansari, aged about 41 years, son of Ramjan Ansari, residents of village- Rohaniyatand v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 93 of 2024 Jabir Ansari, aged about 41 years, son of Ramjan Ansari, residents of village- Rohaniyatand, P.O.- Penk, P.S.- Penk Narayanpur, Dist.- Bokaro (Jharkhand) Versus …... Petitioner The State of Jharkhand ...... Opposite Party For the Petitioner For the State : Mr. Dilip Kr. Jaiswal, Adv. : Ms. Kumari Rashmi, Addl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Legal Reasoning
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 orders dated 16.05.2019 and 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) whereby learned J.M.F.C., Bermo at Tenughat has issued proclamation under Section 82 of CrPC and the attachment order of the property under Section 83 of CrPC respectively against the petitioner. 3. The brief fact of the case is that on 16.05.2019, the accused was absent and the learned J.M.F.C., Bermo at Tenughat by a single sentence order has directed the office clerk to issue proclamation under Section 82 of CrPC against the petitioners and vide order dated 16.01.2020 , merely as the accused was absent, J.M.F.C., Bermo at Tenughat has directed the office clerk to issue the attachment order under Section 83 of CrPC against the petitioner. 4. Learned counsel for the petitioner submits that the proclamation under Section 82 of CrPC has been issued vide order dated 16.05.2019 without following the due process of law and without recording the satisfaction that the petitioner is absconding or 1 Cr.M.P. No. 93 of 2024 concealing himself to evade his arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and without fixing any time and place for the petitioner for his appearance, who is the accused person of the case. It is next submitted that similarly the order dated 16.01.2020 for attachment of the property of the petitioner, has been passed without specifically mentioning about the description of the property to be attached and without recording any satisfaction that the proclamation issued under Section 82 of CrPC has been made, hence, it is psubmitted that the orders dated 16.05.2019 and 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013), being not in accordance with law, be quashed and set aside. 5. Learned Addl. PP on the other hand vehemently opposes the prayer for quashing the orders dated 16.05.2019 and 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) and submits that very fact that the learned J.M.F.C., Bermo at Tenughat has issued the proclamation under Section 82 of Cr.P.C. and order of attachment of property under Section 83 of CrPC respectively against the petitioner itself shows that there were sufficient materials available in the record for the learned J.M.F.C., Bermo at Tenughat to be satisfied that there is justification for issuance of such proclamation and attachment order, hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. 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 proclamation under Section 82 of 2 Cr.M.P. No. 93 of 2024 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 J.M.F.C., Bermo at Tenughat 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, this Court has no hesitation in holding that the learned J.M.F.C., Bermo at Tenughat 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 and this is a fit case where the orders dated 16.05.2019 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) be quashed and set aside. 7. Accordingly, the orders dated 16.05.2019 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) is quashed and set aside. 8. So far as the order dated 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) is concerned, it is a settled principle of law that the court issuing proclamation under Section 82 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of proclamation, may 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 J.M.F.C., Bermo at Tenughat committed 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 3 Cr.M.P. No. 93 of 2024 circumstances, this Court has no hesitation in holding that the order dated 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) is also not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013), be quashed and set aside. 9. Accordingly, the order dated 16.01.2020 passed by learned J.M.F.C., Bermo at Tenughat in connection with Bokaro Thermal P.S. Case no. 14 of 2013 (G.R. No. 276 of 2013) is also quashed and set aside.
Decision
10. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 13th May, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 4 Cr.M.P. No. 93 of 2024