Kankarbagh, District- Patna, Bihar v. 1. The State of Jharkhand 2. Labour Enforcement Officer
Case Details
Cr. M.P. No.974 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.974 of 2023 ------ Sri Atul Kumar Sinha @ Atul Sinha, aged about 62 years, Son of Late Dr. (Major) M.P. Sinha, resident of A-7, Sachiwalay Colony, Kankarbagh, P.O. + P.S.:- Kankarbagh, District- Patna, Bihar. … Petitioner Versus 1. The State of Jharkhand 2. Labour Enforcement Officer (Central), Baghmara at Bokaro, having its office at:- Bokaro, P.O. +P.S.:- Bokaro, District:- Bokaro Opposite Parties (Jharkhand) … For the Petitioner For the State ------
Legal Reasoning
: Mr. Shusavan Bhowmik, Advocate Mr. Kishore Kr. Mishra, Advocate : Mr. Shailendra Kr. Tiwari, 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 orders dated 23.08.2021 and 14.12.2022 in connection with I.D. Case No.02 of 2006. 3. Perusal of the record reveals that no judicial order has been passed on 23.08.2021 or 14.12.2022 and only in the remarks column of the order sheet dated 23.08.2021 of I.D. Case No.02 of 2006 it has been mentioned that ‘O/C to issue NBW to accused’ and similarly in the remarks column of the order dated 14.12.2022 of the said I.D. Case No.02 of 2006 it has been mentioned that process under Section 82 has been issued. 1 Cr. M.P. No.974 of 2023 4. In this Cr.M.P. prayer has also been made to quash the order dated 22.03.2023 by which the Office Clerk was directed to issue non-bailable warrant of arrest against the accused persons of the case including the petitioner and also to quash order dated 02.05.2023 by which, the Office Clerk was directed to issue process under Section 82 of Cr.P.C. against the accused persons and also the order dated 16.08.2023 by which, the attachment order of the property of the petitioner under Section 83 of Cr.P.C. was issued, all in connection with I.D. Case No.02 of 2006. 5. Learned counsel for the petitioner submits that perusal of the record reveals that on 22.03.2023, learned Chief Judicial Magistrate, Bokaro has considered that non-bailable warrant of arrest to the accused and process has already been issued but the accused persons of the case have not appeared in the court, hence, the Office Clerk was directed to issue non-bailable warrant of arrest to the accused. It is next submitted that vide order dated 02.05.2023, without complying with the mandatory provision of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest and without fixing any time and place for appearance of the petitioner, the proclamation under Section 82 of Cr.P.C. has been issued and vide order dated 16.08.2023, without any material in the record to suggest that the proclamation under Section 82 of Cr.P.C. was ever made and without recording any reason, attachment order of the property of the petitioner, has been issued, without mentioning the description of the property to be attached. Hence, the same is not sustainable in law. Accordingly, the same is liable to be quashed and set aside. 6. Learned Spl.P.P. appearing for the State vehemently opposes the prayer of the petitioner and submits that the very fact that the learned Chief Judicial 2 Cr. M.P. No.974 of 2023 Magistrate, Bokaro has issued the proclamation under Section 82 of Cr.P.C., the attachment order under Section 83 of Cr.P.C. as well as the order of non- bailable warrant of arrest against the petitioner itself goes to show that there were ample materials available in the record and there was also justification for issuing non-bailable warrant of arrest and proclamation under Section 82 of Cr.P.C. and attachment order under Section 83 of Cr.P.C. Hence, it is submitted that said orders being not suffering from any illegality, do not warrant to be quashed, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the order dated 22.03.2023 is concerned, it is a settled principle of law that warrant of arrest cannot be issued mechanically but the same can only be issued after recording satisfaction that in the facts and circumstances of the case it is warranted as has been held by the Hon’ble Supreme Court of India in the case of Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Another reported in (2012) 9 SCC 791. 8. It is pertinent to refer to Section 73 of the Code of Criminal Procedure which envisages that inter alia the Chief Judicial Magistrate may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or any person who is an accused of a non-bailable offence and is evading arrest. 9. Now, coming to the facts of the case; the official complaint has been filed alleging commission of offence punishable under Section 29 of the Industrial Disputes Act, 1947 alleging non-implementation of the award passed by the learned Industrial Tribunal. There is no material in the record to show that any 3 Cr. M.P. No.974 of 2023 notice was ever served upon the petitioner. There is no material in the record to suggest that the petitioner is evading his arrest nor such satisfaction has been recorded by the learned Chief Judicial Magistrate while issuing the non- bailable warrant of arrest to the petitioner. The learned Chief Judicial Magistrate, Bokaro certainly committed a perversity by observing that non- bailable warrant of arrest to the accused and process has already been issued by not considering that such remarks in the order-sheet are not sufficient to justify the issuance of non-bailable warrant of arrest or the proclamation under Section 82 of Cr.P.C. It is needless to mention that non-bailable warrant of arrest or for that matter the proclamation under Section 82 of Cr.P.C. can only be issued by the Court by making a specific judicial order in this respect. Hence, as the non- bailable warrant of arrest has been issued against the petitioner vide order dated 22.03.2023, is not sustainable in law; as there is neither any material in the record to suggest that the petitioner was evading his arrest nor such satisfaction has been recorded by the learned Chief Judicial Magistrate in the said order dated 22.03.2023 itself. 10. Accordingly, the order dated 22.03.2023, being not sustainable in law, is quashed and set aside. 11. So far as the order dated 02.05.2023 is concerned, 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 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 Chief Judicial 4 Cr. M.P. No.974 of 2023 Magistrate, Bokaro 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 Chief Judicial Magistrate, Bokaro has committed a perversity 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 order dated 02.05.2023 be quashed and set aside. 12. Accordingly, the order dated 02.05.2023, is quashed and set aside. 13. So far as the order dated 16.08.2023 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of Cr.P.C.; 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 Chief Judicial Magistrate, Bokaro 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 circumstances, this Court has no hesitation in holding that the order dated 16.08.2023 passed by the learned Chief Judicial Magistrate, Bokaro in I.D. Case No.02 of 2006, be quashed and set aside. 14. Accordingly, the order dated 16.08.2023 passed by the learned Chief Judicial Magistrate, Bokaro in I.D. Case No.02 of 2006, is quashed and set aside. 5 Cr. M.P. No.974 of 2023 15. So far as the prayer for quashing the office actions dated 23.08.2021 and 14.12.2022 are concerned, they are the endorsements made in the remarks column. Hence, the same has neither any sanctity nor any recognition under the law. Hence, no specific order is required to be passed regarding the same. 16. It is further submitted by the learned counsel for the petitioner that though specific prayer has not been made but vide order dated 19.10.2023, the learned Chief Judicial Magistrate, Bokaro has declared inter alia the petitioner to be an absconder and ordered to issue permanent warrant of arrest in red ink and also entered the name of the petitioner in absconder register and has also written a letter to the Secretary, DLSA, Bokaro for appointment of an advocate to conduct the case of the absconding accused persons. It is next submitted that the petitioner had no knowledge about the case against him and the management has implemented the ex-parte award dated 18.02.2003 passed in Reference No.167 of 1999 by the Central Government Industrial Tribunal No.2, Dhanbad and the petitioner undertakes to surrender before the learned court below within four weeks from the date of this order, hence, it is submitted that the permanent warrant of arrest issued against the petitioner be recalled. 17. Considering the undertaking of the petitioner through his counsel that he will appear before the learned Chief Judicial Magistrate, Bokaro within four weeks from the date of this judgment, the permanent warrant of arrest issued against the petitioner by the learned Chief Judicial Magistrate, Bokaro is quashed and set aside. 18. This Cr.M.P. is disposed of with a direction to the petitioner to appear before the learned Chief Judicial Magistrate, Bokaro in connection with I.D. Case No.02 of 2006 within four weeks from the date of this order failing which 6 Cr. M.P. No.974 of 2023 the learned Chief Judicial Magistrate, Bokaro may pass fresh order in accordance with law.
Decision
19. This Cr.M.P. stands disposed of accordingly. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 19th of February, 2024 AFR/ Animesh 7