1. Prabha Singh aged about 76 years, wife of Dhaneshwar Singh, resident of House v. The State of Jhark
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1066 of 2024 ------ 1. Prabha Singh aged about 76 years, wife of Dhaneshwar Singh, resident of House. No.46, Road No.3, Phase-2, Aditya Garden, Near RIT More, Adityapur Industrial Area, P.O. & P.S. Adityapur, at District East Singhbhum at Jamshedpur, Jharkhand. 2. Rakesh Kumar Singh aged about 54 years, son of Dhaneshwar Singh, resident of House. No.46, Road No.3, Phase-2, Aditya Garden, near RIT More, Adityapur Industrial Area, P.O. & P.S. Adityapur, at District East Singhbhum at Jamshedpur, Jharkhand. … Petitioners Versus The State of Jharkhand … Opposite Party For the Petitioners For the State
Legal Reasoning
: Mr. Ritesh Kumar, Advocate : Mr. Vishwanath Roy, 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 04.12.2018 and 10.05.2023 passed by the learned Judicial Magistrate, Seraikella-Kharsawan and learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan respectively in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 by which the learned Magistrate concerned has issued the non-bailable warrant of arrest and learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan has issued the proclamation under Section 82 of the Cr.P.C. respectively and 1 Cr. M.P. No.1066 of 2024 the said case is now pending before the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan. 3. The brief fact of the case is that on 04.12.2018, the petitioners who were the accused persons of the said case was absent. It appears that on 19.06.2016, the service report of the summons issued to the accused/petitioners was not received by the court concerned and without the receipt of the said service report of the summons issued to the petitioners, vide order dated 16.05.2018 bailable warrant of arrest was issued to the petitioners and without receiving the service report of the bailable warrant of arrest, vide order dated 04.12.2018, the learned Judicial Magistrate ordered for issue of non-bailable warrant of arrest against the petitioners and on 10.05.2023, the accused was absent but without any execution report of the non-bailable warrant of arrest that was issued, the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan to whom the case in the meanwhile was transferred, has ordered for issuance of process under Section 82 of Cr.P.C. against the petitioners. 4. Learned counsel for the petitioners submits that since the learned Magistrate has issued the bailable warrant of arrest against the petitioners; without the execution report of the said bailable warrant of arrest or without any material in the record to suggest that the petitioners/accused persons of the case are evading their arrest, the learned Magistrate has committed a grave illegality by directing issuance of non-bailable warrant of arrest against the petitioners vide order dated 04.12.2018. Hence, the same is not sustainable in law. 5. It is next submitted that on 10.05.2023, the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan issued proclamation under Section 2 Cr. M.P. No.1066 of 2024 82 of Cr.P.C. without following the due process of law and without recording the satisfaction that the petitioners are absconding or concealing themselves to evade their arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. without fixing any time and place for appearance of the petitioners/accused persons of that case. Hence, it is submitted that the order dated 10.05.2023 passed by the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan, be quashed and set aside. 6. Learned Spl.P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 04.12.2018 and 10.05.2023 passed by the learned Judicial Magistrate, Seraikella-Kharsawan and learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan respectively in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan and submits that the very fact that the learned Judicial Magistrate, Seraikella-Kharsawan and learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan respectively have passed the order for issuance of the non-bailable warrant of arrest and the proclamation under Section 82 of Cr.P.C. itself goes to show that there were materials available in the record for the learned Judicial Magistrate, Seraikella-Kharsawan and learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan respectively to be satisfied that there is justification for issuance of such non- 3 Cr. M.P. No.1066 of 2024 bailable warrant of arrest and the proclamation under Section 82 of Cr.P.C. 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, it is pertinent to mention here that since the learned Judicial Magistrate, Seraikella-Kharsawan undisputedly issued the bailable warrant of arrest, it should have insisted on the execution report of the said bailable warrant of arrest and ought not have issued the non-bailable warrant of arrest without any execution report of the bailable warrant of arrest issued by it. Hence, this Court is of the considered view that this is a fit case where the said order dated 04.12.2018 passed by the learned Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan by which the learned Judicial Magistrate, Seraikella- Kharsawan has directed for issuance of the non-bailable warrant of arrest, being not sustainable in law, is liable to be quashed and set aside. 8. Accordingly, the order dated 04.12.2018 passed by the learned Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, is quashed and set aside. 9. So far as the order dated 10.05.2023 passed by the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, Seraikella- 4 Cr. M.P. No.1066 of 2024 Kharsawan is concerned, by which proclamation under Section 82 Cr.P.C. has been issued against the petitioners 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 Additional Chief Judicial Magistrate, Seraikella-Kharsawan has neither recorded its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest nor fixed any time or place for appearance of the petitioners, this Court has no hesitation in holding that the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan 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 10.05.2023 passed by the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now pending before the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan is liable to be quashed and set aside. 10. Accordingly, the order dated 10.05.2023 passed by the learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan in connection with Adityapur P.S. Case No.266 of 2014 corresponding to G.R. No.772 of 2014 which is now 5 Cr. M.P. No.1066 of 2024 pending before the learned Additional Chief Judicial Magistrate, Seraikella- Kharsawan, is quashed and set aside. 11. The learned Additional Chief Judicial Magistrate, Seraikella-Kharsawan 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 15th of May, 2024 AFR/ Animesh-Saroj 6 Cr. M.P. No.1066 of 2024