Karra, District- Khunti v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1764 of 2024 ------ Akhilesh Gope aged about- 30 years, son of Late Mahadev Gope, Resident of village- Bamarija, Post Office: Tilmi, Police Station: Karra, District- Khunti. … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State ------
Legal Reasoning
: Mr. Ritesh Kumar, Advocate : Ms. Priya Shrestha, 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 invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash the orders dated 06.03.2019 and 16.04.2019 in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. No.172 of 2019 whereby and where under the proclamation under Section 82 of the Code of Criminal Procedure and attachment order under Section 83 of the Code of Criminal Procedure have respectively been issued and the said case is now pending before the court of learned Judicial Magistrate-1st Class, Khunti. 3. The brief facts of the case is that on 06.03.2019, the Investigating Officer of the case filed a petition along with the execution report of warrant of arrest with a prayer for issuance of proclamation under section 82 of the Code of Criminal Procedure and the same was issued. Vide order 16.04.2019, another prayer was made by the Investigation Officer for issuance of the process under 1 Cr. M.P. No.1764 of 2024 Section 83 of the Code of Criminal Procedure and the same was also issued by the learned Chief Judicial Magistrate, Khunti. 4. Learned counsel for the petitioner submits that the proclamation under Section 82 of the Code of Criminal Procedure has been issued vide order dated 06.03.2019 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 the proclamation under Section 82 of the Code of Criminal Procedure and without any information available in the record that the proclamation under Section 82 of the Code of Criminal Procedure was ever made, the learned Chief Judicial Magistrate, Khunti committed grave illegality by passing the order of attachment of the property of the petitioner under Section 83 of the Code of Criminal Procedure without mentioning the description of the property to be attached. Hence, it is submitted that the order dated 06.03.2019 and 16.04.2019 passed in Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 be quashed and set aside. 5. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer for quashing the order dated 06.03.2019 and 16.04.2019 passed by the learned Chief Judicial Magistrate, Khunti in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 and submits that the very fact that the learned Chief Judicial Magistrate, Khunti has issued the proclamation under Section 82 of Code of Criminal Procedure and the order of attachment under Section 83 of the Code of Criminal Procedure itself shows that there were materials available in the record for the 2 Cr. M.P. No.1764 of 2024 learned Judicial Magistrate, Khunti to be satisfied that there is justification for issuance of such proclamation and attachment order of property. 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 the Code of Criminal Procedure must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of the Code of Criminal Procedure is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of the Code of Criminal Procedure, it must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of the Code of Criminal Procedure is issued. As already indicated above since the learned Chief Judicial Magistrate, Khunti has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor mentioned the time and place for appearance of the petitioner; hence, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Khunti has committed gross illegality by issuing the said proclamation under Section 82 of the Code of Criminal Procedure without complying with the mandatory requirements of law. Hence, the same is not sustainable in law. Therefore, this is a fit case where the order dated 06.03.2019 passed by the learned Chief Judicial Magistrate, 3 Cr. M.P. No.1764 of 2024 Khunti in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 be quashed and set aside. 7. Accordingly, the order dated 06.03.2019 passed by the learned Chief Judicial Magistrate, Khunti in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 is quashed and set aside. 8. So far as the order dated 16.04.2019 is concerned, it is a settled principle of law that the court which orders for issuance of proclamation under Section 82 of the Code of Criminal Procedure, for the reasons to be recorded in writing, at any time after issuance of such order of proclamation, may order for attachment of the property of the accused either movable or immovable or both belonging to the proclaimed person. 9. Now in the absence of any material in the record to suggest that the proclamation under Section 82 of the Code of Criminal Procedure was in fact made in accordance with law, certainly the learned Chief Judicial Magistrate, Khunti has committed illegality by passing the order of attachment of the property of the petitioner without mentioning the description of the property to be attached and without recording any reason for the need for passing such order of attachment. 10. Under such circumstance, this Court has no hesitation in holding that the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Khunti in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 is 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 16.04.2019 passed by the learned Chief Judicial Magistrate, Khunti in 4 Cr. M.P. No.1764 of 2024 connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 be quashed and set aside. 11. Accordingly, the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Khunti in connection with Jariagarh P.S. Case No.02 of 2018 corresponding to G.R. Case No.172 of 2019 is quashed and set aside. 12. The learned Chief Judicial Magistrate, Khunti may pass fresh order in accordance with law. 13.
Decision
In the result, this Criminal Miscellaneous Petition is disposed of. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of July, 2024 AFR/ Saroj 5 Cr. M.P. No.1764 of 2024