Rajesh Rajpal, aged about 55 years, son of late Mohan Lal Rajpal, resident of v. For the
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1205 of 2024 Rajesh Rajpal, aged about 55 years, son of late Mohan Lal Rajpal, resident of Jain Mandir Road, Castair’s Town Deoghar, P.O.- B. Deoghar, P.S.- Deoghar Town, Dist.- Deoghar …... Petitioner The State of Jharkhand ...... Opposite Party Versus For the Petitioner For the State : Mr. PRan Pranay, Adv. : Mr. Shiv Shankar Kumar, Addl. PP P R E S E N T
Legal Reasoning
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 01.09.2023 and 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 whereby learned J.M., Deoghar has issued of proclamation under Section 82 of Cr.P.C. and the attachment order of the property under Section 83 of Cr.P.C. respectively against the petitioner who is the accused person of that case. 3. The brief fact of the case is that on 01.09.2023, the accused was absent and the learned J.M., Deoghar directed the office clerk to issue process under Section 82 of Cr.P.C. against the accused person, and vide order dated 31.01.2024, as the accused was absent, the complainant was directed to file process fee, for the process under Section 83 of Cr.P.C.. 4. Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 01.09.2023 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 a sine qua non for 1 Cr.M.P. No. 1205 of 2024 issuing proclamation under Section 82 of Cr.P.C. and without fixing any time and place for the petitioner for his appearance. It is next submitted that similarly the order dated 31.01.2024 has been passed without specifically mentioning about attachment of property but since Section 83 of Cr.P.C. has been mentioned, so it obviously means that the same is an attachment order of property of the petitioner, without recording any satisfaction that there is any need for the same and without even service report of the proclamation made under Section 82 of Cr.P.C. and even without mentioning the description of the property to be attached, is not sustainable in law, hence, it submitted that the orders dated 01.09.2023 and 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 be quashed and set aside. 5. Learned Addl. PP on the other hand vehemently opposes the prayer for quashing the orders dated 01.09.2023 and 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 and submits that the very fact that the learned J.M., Deoghar has issued the proclamation under Section 82 of Cr.P.C. and order of attachment of property under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned J.M., Deoghar to be satisfied that there is justification for issuance of such proclamation and attachment order, hence, it is submitted that this 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 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 2 Cr.M.P. No. 1205 of 2024 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 J.M., Deoghar 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 J.M., Deoghar 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 and this is a fit case where the order dated order dated 01.09.2023 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 be quashed and set aside. 7. Accordingly, the order dated 01.09.2023 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 is quashed and set aside. 8. So far as the order dated 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 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 J.M., Deoghar 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 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 is also not in 3 Cr.M.P. No. 1205 of 2024 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 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020, be quashed and set aside. 9. Accordingly, the order dated 31.01.2024 passed by learned J.M., Deoghar in connection with Complaint Case No. 527 of 2020 is also quashed and set aside.
Decision
10. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 6th May, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 4 Cr.M.P. No. 1205 of 2024