1. Rajendra Kumar Sinha Aged 42 years Son of Late Yadunandan Prasad 2. Ajay v. 1. The State of Jharkhand 2. Shital Sinha D/O Late Ajit Kishore Prasad Resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1796 of 2023 ------ 1. Rajendra Kumar Sinha Aged 42 years Son of Late Yadunandan Prasad 2. Ajay Kumar Sinha Age 48 years son of late Yadunandan Prasad 3. Baby Sinha Age 45 years Wife of Ajay Kumar Sinha All Resident of Village Gawan P.O. Gawan and Police Station- Gawan, District- Giridih … Petitioners Versus 1. The State of Jharkhand 2. Shital Sinha D/O Late Ajit Kishore Prasad Resident of Village
Legal Reasoning
Tisri P.O. and P.S. Tisri- District Giridih … Opposite Parties ------ For the Petitioners For the State For the O.P. No.2 : Mr. Prabhash Ch. Sinha, Advocate : Ms. Kumari Rashmi, Addl.P.P. : Mr. Sudhir Kr. Roy, Advocate ------ 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 dated 08.02.2023 passed in Cr. Revision No.37 of 2020 by the learned Sessions Judge, Giridih and further to quash the order dated 10.07.2018 by which the proclamation under Section 82 of Cr.P.C. has been issued and the order dated 07.12.2018 by which the attachment order of property under Section 83 of Cr.P.C. has been directed to be issued against the petitioners; who are the accused persons of the Complaint Case No.484 of 2011, by the learned Additional Chief Judicial Magistrate, Giridih. 1 Cr. M.P. No.1796 of 2023 3. The brief facts of the case is that on 10.07.2018, the petitioners who are the accused persons of Complaint Case No.484 of 2011 of the court of the Additional Chief Judicial Magistrate, Giridih were absent in the court and the learned Additional Chief Judicial Magistrate, Giridih directed to issue of the proclamation under Section 82 of Cr.P.C. Similarly, vide order dated 07.12.2018, the petitioners who were the accused persons of the said case were absent and the learned Additional Chief Judicial Magistrate, Giridih directed for issuance of attachment order of the property of the petitioners under Section 83 of Cr.P.C. 4. Being aggrieved by the said orders, the petitioners filed Cr. Revision No.37 of 2020 but the learned revisional court found the revision petition being devoid of any merit and dismissed the same. 5. Learned counsel for the petitioners submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 10.07.2018 without following the due process of law and without recording the satisfaction that the petitioners are absconding or concealing themselves to evade their arrest and without fixing any time or place for the appearance of the petitioners who are the accused persons of the case; which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, passed the order for attachment of the property of the petitioners under Section 83 of Cr.P.C., without mentioning the property to be attached vide order dated 07.12.2018. Hence, it is submitted that the learned Sessions Judge, Giridih without considering the settled principle of law in this respect has dismissed the criminal revision illegally. It is lastly submitted that the order dated 2 Cr. M.P. No.1796 of 2023 10.07.2018 and 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011 and the order dated 08.02.2023 passed by the learned Sessions Judge, Giridih in Cr. Revision No.37 of 2020, be quashed and set aside. 6. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer made by the petitioners in this Cr.M.P. and submit that the very fact that the learned Additional Chief Judicial Magistrate, Giridih has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Additional Chief Judicial Magistrate, Giridih to be satisfied that there is justification for issuance of such proclamation and the attachment order. 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 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, Giridih has neither recorded its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest nor fixed any time or place for 3 Cr. M.P. No.1796 of 2023 appearance of the petitioners, hence, this Court has no hesitation in holding that the learned Additional Chief Judicial Magistrate, Giridih has committed illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirements of law, which the learned Sessions Judge, Giridih has also failed to take note of in Cr. Revision No.37 of 2020. Hence, the order dated 10.07.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011 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 10.07.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011 be quashed and set aside. 8. Accordingly, the order dated 10.07.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011, is quashed and set aside. 9. So far as the order dated 07.12.2018 is concerned, it is a settled principle of law that the court issuing proclamation under Section 83 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of proclamation, may 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 83 of Cr.P.C. was in fact made in accordance with law, certainly vide the order dated 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011, the learned Additional Chief Judicial Magistrate, Giridih committed illegality by passing the order of attachment of property of the petitioners without mentioning the description of the property 4 Cr. M.P. No.1796 of 2023 to be attached and without recording any reason in writing about the need for passing such order of attachment. Under such circumstances, this Court has no hesitation in holding that the order dated 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011 is also 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 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011, be quashed and set aside. 10. Accordingly, the order dated 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Giridih in connection with Complaint Case No.484 of 2011, is quashed and set aside. 11. It is pertinent to mention here that in the order dated 08.02.2023 passed by the learned Sessions Judge, Giridih in Cr. Revision No.37 of 2020; the learned Sessions Judge, Giridih, has committed gross illegality and perversity by failing to take into consideration the settled principle of law regarding the essential requirements and application of mind by the court concerned for issuing the proclamation under section 82 of the Code of Criminal Procedure, and has also failed to take into consideration the settled will of law for issuing the attachment order under section 83 of the Code of Criminal Procedure. Therefore, the same is also not sustainable in law and this is a fit case where the order dated 08.02.2023 passed by the learned Sessions Judge, Giridih in Cr. Revision No.37 of 2020, be also quashed and set aside. 12. Accordingly, the order dated 08.02.2023 passed by the learned Sessions Judge, Giridih in Cr. Revision No.37 of 2020 is also quashed and set aside. 5 Cr. M.P. No.1796 of 2023 13. In view of the discussion made above, the learned Additional Chief Judicial Magistrate, Giridih may pass a fresh order in Complaint Case No.484 of 2011, in accordance with law. 14.
Decision
In the result, this Cr.M.P. is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 20th of August, 2024 AFR/ Saroj 6 Cr. M.P. No.1796 of 2023