Bijay Kumar Singh, aged about 63 years, son of late Gopal Singh, Secretary, the v. 1. The State of Jharkhand 2. Bhirgunath Singh, son of late Ramadhar Singh, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.997 of 2019 ------ Bijay Kumar Singh, aged about 63 years, son of late Gopal Singh, Secretary, the then Seraikella Glass Works Cooperative Society Ltd., Kandra, P.O.-Kandra, P.S.-Gamharia, Dist.-Singhbhum (West), now Seriakella-Kharsawan. At present residing at Flat No. 1702, Tower E, Arihant Arden G.H.-07A, Sector-1, Greater Noida, West, Bisrakh Jalalpur, P.O. & P.S.-Gautam Buddha Nagar, Dist.- Noida, State-U.P. . … Petitioner Versus 1. The State of Jharkhand 2. Bhirgunath Singh, son of late Ramadhar Singh, resident of Kandra, P.O.-Kandra, P.S.-Gamharia, Dist.-Singhbhum (West) now Seraikella-Kharsawan … Opposite Party For the Petitioner For the State ------
Legal Reasoning
: Mr. R.C.P. Sah, Advocate : Mr. Suraj Deo Munda, Addl. 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 15.04.2008, 02.05.2009 and 21.12.2011 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella. 3. Learned counsel for the petitioner submits at the outset that the petitioner does not press this criminal miscellaneous petition in respect of the prayer to quash the order dated 21.12.2011 and confines his prayer only to 1 Cr. M.P. No.997 of 2019 quash and set aside the orders dated 15.04.2008 and 02.05.2009 by which respectively proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. has been issued. 4. Considering the aforesaid prayer, the prayer for quashing the order dated 21.12.2011 is rejected as not pressed. 5. So far as the order dated 15.04.2008 is concerned, perusal of the record reveals that on 15.04.2008 as the petitioner –Bijay Kumar Singh who was the accused person of the said case was absent, the learned Judicial Magistrate 1st Class, Seraikella, issued the proclamation under Section 82 Cr.P.C. against the petitioner and vide order dated 02.05.2009 as the petitioner was absent, the learned Judicial Magistrate 1st Class, Seraikella directed the office clerk to issue the attachment order of the property under Section 83 Cr.P.C. 6. Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 15.04.2008 without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest and that too without fixing any time and place for appearance of the petitioner-accused person of the case; 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 82 Cr.P.C. was ever made, passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the orders dated 15.04.2008, and 02.05.2009 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella; being not in accordance with law, be quashed and set aside. 2 Cr. M.P. No.997 of 2019 7. Learned Addl. P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 15.04.2008, and 02.05.2009 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella and submits that the very fact that the learned Judicial Magistrate 1st Class, Seraikella has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Judicial Magistrate 1st Class, Seraikella to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. 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 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, Seraikella 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 Judicial Magistrate 1st Class, Seraikella has committed illegality by directing issue of the said proclamation under Section 82 of Cr.P.C. without complying the 3 Cr. M.P. No.997 of 2019 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 15.04.2008 be quashed and set aside. Accordingly, the order dated 15.04.2008 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella, is quashed and set aside. 9. So far as the order dated 02.05.2009 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, 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 Judicial Magistrate 1st Class, Seraikella 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 02.05.2009 passed in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) by the learned Judicial Magistrate 1st Class, Seraikella 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 02.05.2009 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella, be quashed and set aside. 4 Cr. M.P. No.997 of 2019 10. Accordingly, the order dated 02.05.2009 in connection with Gamaharia P.S. Case No. 26 of 1997 corresponding to G.R. No. 255 of 1997 (S) passed by the learned Judicial Magistrate 1st Class, Seraikella, is quashed and set aside. 11. The learned Judicial Magistrate 1st Class, Seraikella may pass a fresh order in accordance with law. 12.
Decision
In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 19th August, 2024 AFR/ Sonu-Gunjan/- 5 Cr. M.P. No.997 of 2019