Yadav Resident of Village Dewaki, P.O. and P.S. Ghaghra, District Gumla v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1178 of 2024 ------ Anita Yadav @ Anita Yadav @ Gunjair Devi aged about 43 years W/O Late Sunil Yadav Resident of Village Dewaki, P.O. and P.S. Ghaghra, District Gumla Versus The State of Jharkhand … Opposite Party … Petitioner ------ For the Petitioner For the State
Legal Reasoning
: Mr. Pandey A.N. Roy, Sr. Advocate Mr. Pragati Prasad, Advocate : Mr. Sunil Kr. Dubey, 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 order date 02.09.2016 by which the non-bailable warrant of arrest was issued, order dated 24.09.2016 by which the proclamation under Section 82 of Cr.P.C. was issued and the order dated 05.12.2020 by which the attachment order of property under Section 83 of Cr.P.C. was issued by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S). Though further prayer has also been made to quash the order dated 30.09.2020 but the learned senior counsel for the petitioner submits that the petitioner does not want to press the prayer to quash the said order dated 30.09.2020 and the petitioner confines his prayer to quash the only three orders as already indicated above. Hence, the prayer to quash the said order dated 30.09.2020 in the said case is rejected as not pressed. 1 Cr. M.P. No.1178 of 2024 3. Learned senior counsel for the petitioner submits that on 02.09.2016, the learned Chief Judicial Magistrate, Lohardaga issued the non-bailable warrant of arrest without recording any satisfaction that the petitioner, who is the accused person of the case, is evading her arrest. Hence, the same is not sustainable in law. It is next submitted that vide order dated 24.09.2016, the learned Chief Judicial Magistrate, Lohardaga without following due process of law and without recording the satisfaction that the petitioner is absconding or concealing herself to evade her arrest and without fixing any time and place for appearance of the petitioner, who is the accused persons of the said case, has ordered for issue of the proclamation under Section 82 of Cr.P.C. which is also not in consonance with law. 4. It is next submitted that vide order dated 05.12.2020, the learned Chief Judicial Magistrate, Lohardaga without recording any satisfaction that the proclamation issued under Section 82 of Cr.P.C. was made in accordance with law, has passed order for attachment of the property of the petitioner without mentioning the property to be attached. Hence, it is submitted that the order dated 05.12.2020 is not in accordance with law. It is, therefore, submitted that the remaining three prayers as prayed for in this Cr.M.P. be allowed. 5. Learned Addl.P.P. appearing for the State on the other hand vehemently oppose the prayer of the petitioner made in this Cr.M.P. and submits that the very fact that the learned Chief Judicial Magistrate, Lohardaga has issued the non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and the attachment order under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Chief Judicial Magistrate, Lohardaga to be satisfied that there is justification for issuance of such non- 2 Cr. M.P. No.1178 of 2024 bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and the order for attachment. Hence, it is submitted that this Cr.M.P., 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 so far as the order dated 02.09.2016 is concerned, Section 73 of Cr.P.C. empowers inter alia the Chief Judicial Magistrate to direct a warrant to any person within his local jurisdiction for arrest inter alia of a person who is accused of a non-bailable offence and evading his arrest. 7. Now coming to the facts of the case, undisputedly the petitioner is accused of committing inter alia the offence punishable under Section 370 of the Indian Penal Code which is a non-bailable offence but the learned Chief Judicial Magistrate, Lohardaga has not recorded any satisfaction that the petitioner is evading her arrest and in the absence of any such satisfaction, certainly the learned Chief Judicial Magistrate, Lohardaga committed a grave error issuing the non-bailable warrant of arrest. Hence, the same is not sustainable in law and this is a fit case where the order dated 02.09.2016 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), be quashed and set aside. 8. Accordingly, the order dated 02.09.2016 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), is quashed and set aside. 9. So far as the order dated 24.09.2016 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 3 Cr. M.P. No.1178 of 2024 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 the proclamation under Section 82 of Cr.P.C., it must mention the time and place for appearance of the accused in respect of whom the proclamation under Section 82 of Cr.P.C. was issued. As already indicated above since the learned Chief Judicial Magistrate, Lohardaga has neither recorded its satisfaction that the petitioner is absconding or concealing herself to evade her arrest nor fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Lohardaga has committed gross illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying the mandatory requirements of law. Hence, the same is not sustainable in law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 24.09.2016 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), be quashed and set aside. 10. Accordingly, the order dated 24.09.2016 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), is quashed and set aside. 11. So far as the order dated 05.12.2020 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of the 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 Chief Judicial 4 Cr. M.P. No.1178 of 2024 Magistrate, Lohardaga has committed gross 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 of attachment of the property of the petitioner dated 05.12.2020 is also not in accordance with law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 05.12.2020 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), be quashed and set aside. 12. Accordingly, the order dated 05.12.2020 passed by the learned Chief Judicial Magistrate, Lohardaga in connection with A.H.T.U. P.S. Case No.09 of 2016(S), is quashed and set aside. 13. The learned Chief Judicial Magistrate, Lohardaga may pass a fresh order in accordance with law. 14.
Decision
In the result, this Criminal Miscellaneous Petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 01st of October, 2024 AFR/ Saroj 5 Cr. M.P. No.1178 of 2024