Gopinath v. The State of Jharkhand

: Mr. Kaushik Sarkhel, Advocate : Mr. Abhishek Kumar, Advocate : Mr. Achinto Sen, Addl. P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

2. Though, this Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with several prayers but the petitioner does not press the prayer to quash the order dated 21.03.2012 passed by the learned ACJM, Jamtara in connection with Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011 and confines his prayer to quash the order dated 11.05.2012 in the said case by which the proclamation under Section 82 of Cr.P.C. has been issued and the order dated 11.07.2012 passed in that case by which the process under Section 83 of Cr.P.C. has been issued against the petitioner.

3. The brief facts of the case is that on 11.05.2012, the IO of the case returned the non-bailable warrant of arrest issued against the petitioner and made a prayer for issuance of the proclamation under Section 82 of Cr.P.C. 1 Cr. M.P. No.1469 of 2019 ( 2025:JHHC:11554 ) and the learned Magistrate without recording any satisfaction that the petitioner is absconding or concealing himself to evade his arrest ordered for issuance of the proclamation under Section 82 of Cr.P.C. by the order dated

11.05.2012 and on 11.07.2012, the IO of the case made a prayer for issuance of process under Section 83 of Cr.P.C. in the said case inter alia against the petitioner, hence, the same has been issued.

4. Learned counsel for the petitioner submits that the said order dated

11.05.2012 having been passed by the learned ACJM, Jamtara 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 issuing proclamation under Section 82 of Cr.P.C.; the said order dated 11.05.2012 is bad in law. It is next submitted that similarly, the order dated 11.07.2012 passed in the said case under Section 83 of Cr.P.C. without mentioning the property to be attached and without recording any reason for issuing the process, the same is also bad in law. Hence, it is submitted that the orders dated 11.05.2012 and 11.07.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011; being not in accordance with law, be quashed and set aside.

5. Learned Addl.P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 11.05.2012 and 11.07.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011 and submits that the very fact that the learned Additional Chief Judicial Magistrate has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment 2 Cr. M.P. No.1469 of 2019 ( 2025:JHHC:11554 ) under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Additional Chief Judicial Magistrate to be satisfied that there is justification for issuance of such proclamation and process. 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 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, Jamtara 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 Additional Chief Judicial Magistrate, Jamtara 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 11.05.2012 be quashed and set aside against the petitioner. 3 Cr. M.P. No.1469 of 2019 ( 2025:JHHC:11554 )

7. Accordingly, the order dated 11.05.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011, is quashed and set aside against the petitioner.

8. So far as the order dated 11.07.2012 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 Additional Chief Judicial Magistrate, Jamtara 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 11.07.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011 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 11.07.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011, be quashed and set aside against the petitioner. 4 Cr. M.P. No.1469 of 2019 ( 2025:JHHC:11554 )

9. Accordingly, the order dated 11.07.2012 passed by the learned Additional Chief Judicial Magistrate, Jamtara in Karmatar P.S. Case No.108 of 2011 arising out of G.R Case No.669A/2011, is quashed and set aside against the petitioner.

10. The learned Additional Chief Judicial Magistrate, Jamtara may pass a fresh order in accordance with law.

11. In the result, this Cr.M.P. stands allowed to the aforesaid extent.

12. In view of disposal of this Cr.M.P., the interim order granted earlier vide order dated 24.10.2019, is vacated.

13. Registry is directed to intimate the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 17th of April, 2025 AFR/ Abhiraj 5 Cr. M.P. No.1469 of 2019