Amitava Gupta, aged about 62 Years, S/o Binay Krishna Gupta, Managing Director- M/s Brother v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.835 of 2018 ------ Amitava Gupta, aged about 62 Years, S/o Binay Krishna Gupta, Managing Director- M/s Brother Morphin Hub Pvt. Ltd., having its office at 13, Jessor Road, North Champadali More, P.O. & P.S.- Barasath, District- Kolkata (West Bengal). … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State For the Informant ------
Legal Reasoning
: Mr. Sidhartha Roy, Advocate : Mr. Jitendra Pandey, Addl.P.P. : Mr. Rahul Kumar, Advocate Mr. Chaitanya Vijay, Advocate ------ 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 invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash the orders dated 30.11.2016 and 24.05.2017 whereby and where under the non-bailable warrant of arrest and the proclamation under Section 82 of the Code of Criminal Procedure respectively were issued by the learned Judicial Magistrate-1st Class, Ranchi in connection with Bariatu P.S. Case no.169 of 2016. 3. The brief facts of the case is that on 30.11.2016, the Investigation Officer of the case filed a petition with a prayer for issuance of non-bailable warrant of arrest against the petitioner and the learned Judicial Magistrate, Ranchi ordered to issue non-bailable warrant of arrest. On 24.05.2017, the learned A.P.P. filed a 1 Cr. M.P. No.835 of 2018 petition for issuance of proclamation under Section 82 of the Code of Criminal Procedure against the petitioner who is the accused person of the said case and submitted the report of the Investigating Officer in respect of non-bailable warrant of arrest issued, wherein it was mentioned that the Investigating Officer made attempts for the arrest of the petitioner on 04.02.2017 with the help of the concerned police station but the petitioner avoided his arrest and the learned Judicial Magistrate, Ranchi issued the proclamation without fixing any time and place for appearance of the petitioner. 4. Learned counsel for the petitioner submits that so far as the order dated 30.11.2016 is concerned, as there is no satisfaction recorded by the learned Judicial Magistrate that the petitioner is evading his arrest hence, the said order dated 30.11.2016 is not sustainable in law. So far as the order dated 24.05.2017 is concerned, it is submitted by the learned counsel for the petitioner that the proclamation under Section 82 of the Code of Criminal Procedure has been issued 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 sine qua non for issuing the proclamation under Section 82 of the Code of Criminal Procedure and without any information available in the record that the execution report of non-bailable warrant of arrest has ever been received, issued the order of proclamation under Section 82 of the Code of Criminal Procedure without fixing any time and place for appearance of the petitioner. Hence, the order dated 24.05.2017 passed by the learned Judicial 2 Cr. M.P. No.835 of 2018 Magistrate, Ranchi is also not sustainable in law. Hence, it is submitted that the same be quashed and set aside. 5. Learned Addl.P.P. appearing for the State and learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer for quashing the orders dated 30.11.2016 and 24.05.2017 passed by the learned Judicial Magistrate, Ranchi in connection with Bariatu P.S. Case no.169 of 2016 and submits that the very fact that the learned Judicial Magistrate, Ranchi issued a non-bailable warrant of arrest and the proclamation under Section 82 of the Code of Criminal Procedure itself show that there were sufficient materials available in the record for the learned Judicial Magistrate, Ranchi to be satisfied that there is justification for issuance of such non-bailable warrant of arrest and proclamation. Hence, it is submitted that the 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 Section 73 of the Code of Criminal Procedure inter alia vest the power upon the court to issue the non-bailable warrant of arrest inter alia against any person who is accused of a non-bailable offence and is evading his arrest. 7. Now coming to the facts of the case, no doubt the petitioner who is the accused of committing non-bailable offence punishable under Section 406, 420 of the Indian Penal Code but without any satisfaction that the petitioner was evading arrest, certainly the learned Judicial Magistrate, Ranchi committed an illegality vide order dated 30.11.2016; in passing the orders for issue of non- 3 Cr. M.P. No.835 of 2018 bailable warrant of arrest. Hence, the order dated 30.11.2016 passed in connection with Bariatu P.S. Case no.169 of 2016 is not sustainable in law. 8. Accordingly, the order dated 30.11.2016 passed in connection with Bariatu P.S. Case no.169 of 2016 is quashed and set aside. 9. So far as the order dated 24.05.2017 is concerned, by now it is a settled principle of law that the court which issues the proclamation under Section 82 of the Code of Criminal Procedure must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of the Code of Criminal Procedure is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of the Code of Criminal Procedure, the court concerned, must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of the Code of Criminal Procedure is issued. As already indicated above since the learned Judicial Magistrate, Ranchi has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor mentioned the time and place for appearance of the petitioner. Hence, this Court has no hesitation in holding that the learned Judicial Magistrate, Ranchi has committed gross illegality by issuing the said proclamation under Section 82 of the Code of Criminal Procedure, without complying with the mandatory requirements of law. Hence, the order dated 24.05.2017 passed in connection with Bariatu P.S. Case no.169 of 2016 is not sustainable in law and continuation of the same will amount to abuse of process of law. 4 Cr. M.P. No.835 of 2018 10. Accordingly, the order dated 24.05.2017 passed in connection with Bariatu P.S. Case no.169 of 2016 by the learned Judicial Magistrate, Ranchi is quashed and set aside. 11. The learned Judicial Magistrate, Ranchi may pass fresh order in accordance with law. 12.
Decision
In the result, this Criminal Miscellaneous Petition is disposed of. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 31st of July, 2024 AFR/ Saroj 5 Cr. M.P. No.835 of 2018