Opp. Party v. P R E S E N T HON
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2318 of 2024 Rohit Mehta, aged about 35 years, S/o Jaya Govind Singh, R/o At – Singh More Kalyanpur Hatia, Road No. 7, Ranchi, P.O. & P.S. –Hatia, District –Ranchi, State -Jharkhand .... Petitioner The State of Jharkhand …. Opp. Party Versus P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State
Legal Reasoning
upon the Judgment of a Coordinate Bench of this Court in the case of Md. Rustum Alam @ Rustam & Others Vs. The State of Jharkhand in Cr.M.P. No. 2722 of 2019 dated 27.04.2020 that in para-11 of the said Judgment, it has been observed by the Coordinate Bench that both the conditions that is the person against whom a warrant is directed is accused of a non-bailable offence and is evading his arrest, is required for issuing the non- bailable warrant of arrest. 5. The learned counsel for the petitioner next relied upon the Judgment of Hon’ble Supreme Court of India in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, reported in (2007) 12 SCC 1, para -56 of which reads as under:- “56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. “ And submits that the learned Chief Judicial Magistrate has committed grave illegality by issuing warrant of arrest against the petitioner. It is then submitted by the learned counsel for the petitioner that the learned Chief Judicial Magistrate has not 3 Cr.M.P. No.2318 of 2024 followed the provision of law and by a non-speaking order has issued the proclamation under Section 82 Cr.P.C. as well. Hence, it is submitted that the prayer made in this criminal miscellaneous petition be allowed. 6. The learned Special Public Prosecutor on the other hand vehemently opposes the prayer as made in this criminal miscellaneous petition and submits that as is evident from the record itself, particularly from the order dated 11.06.2024 that police on several dates made efforts to apprehend the petitioner. So it is very much apparent that the petitioner was very much aware about the issuance of warrant of arrest against him but the petitioner deliberately did not approach this Court to ensure that the shortcomings in the order issuing warrant of arrest can be taken advantage of by the petitioner at a later stage. It is next submitted that there is absolutely no illegality in the order dated 11.06.2024 by which the proclamation under Section 82 Cr.P.C. has been issued. Even the petitioner except making a bald allegation that the same is a non-speaking order has not dared to make any other submission; regarding any demerits in the said order dated 11.06.2024. It is then submitted that merely because there is any shortcoming in the warrant of arrest, the subsequent legal and valid order of issuing the proclamation under Section 82 Cr.P.C. cannot be quashed, as a such proposition will frustrate the prosecution of any accused because in case a non-bailable warrant of arrest is issued in any case without adhering to the mandatory 4 Cr.M.P. No.2318 of 2024 provision of law and subsequently that accused is arrested on the basis of such non-bailable warrant of arrest and faces the trial, without demur, a prayer can also be made at a later stage that since the arrest was made upon execution of warrant issued by an order without adhering to the mandatory provision of law, hence the entire criminal proceeding which subsequently took place after the accused was taken into custody on the basis of such non- bailable warrant of arrest; be quashed because he faced the trial without being validly taken into custody or being in illegal custody. Hence such a proposition is an absurdity. It is therefore submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials available in the record, this Court has no hesitation in holding that there is no illegality in the order dated 11.06.2024 by which the proclamation under Section 82 Cr.P.C. has been issued because the learned Chief Judicial Magistrate has followed all the mandatory requirements of law before passing the order. The question is in the order dated 24.07.2023, as the learned Chief Judicial Magistrate has not expressly mentioned that the petitioner is evading his arrest; whether for that reason, the order by which warrant of arrest was issued dated 24.07.2023 and the subsequent legal and valid order passed on 11.06.2024 can both be quashed and set aside. The answer is obviously no. The reason being the petitioner though was very much aware of the 5 Cr.M.P. No.2318 of 2024 warrant of arrest having been issued against him on 24.07.2023 did not approach the court for about a year thereafter and waited for approaching this Court, till the proclamation was made under Section 82 Cr.P.C.. Therefore, this Court is of the considered view that in view of this conduct of the petitioner, merely because the learned Chief Judicial Magistrate has not specifically mentioned that the petitioner is evading his arrest, the subsequent valid and legal order dated 11.06.2024 by which proclamation under Section 82 Cr.P.C. has been issued against the petitioner cannot be quashed and set aside. As that will give a premium to an accused person for not approaching this court immediately and waiting for several legal and valid orders to be passed against him; to set at naught the subsequent valid and legal orders and thereby delay and frustrate the criminal prosecution. Accordingly, this criminal miscellaneous petition being without any merit is dismissed.
Arguments
: Mr. Sheo Kr. Singh, Advocate : Mr. P.D. Agrawal, Spl. P.P. ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 582 of Bhartiya Nagrik Suraksha Sanhita, 2023 with a prayer for quashing the order dated 24.07.2023 passed by the learned Chief Judicial Magistrate, Dhanbad; by which the learned Chief Judicial Magistrate, Dhanbad ordered for issuance of non-bailable warrant of arrest against the petitioner in connection with Chirkunda P.S. Case No. 134 of 2022. Further prayer has been made for quashing the order dated 11.06.2024 by which order for proclamation under Section 82 Cr.P.C. has been issued against the petitioner by the learned Chief Judicial Magistrate, Dhanbad in connection with the said Chirkunda P.S. Case No. 134 of 2022 and prayer has also been made for other consequential reliefs. 1 Cr.M.P. No.2318 of 2024 3. The brief facts of the case is that the petitioner is accused of committing offences punishable under Section 420/467/468/ 471/34 of the Indian Penal Code and Chirkunda P.S. Case No. 134 of 2022 has been registered inter-alia against the petitioner. On 24.07.2023, the I.O. of the case filed a petition for issuance of warrant of arrest mentioning therein that despite issuance of notice under Section 41A of the Cr.P.C., the accused did not appear before the court nor before the I.O. nor filed any reply and for further investigation of the case, the presence of the accused is necessary and there is sufficient evidence in the case to submit charge sheet and he prayed for issuance of non bailable warrant of arrest and the learned Chief Judicial Magistrate, Dhanbad, after perusal of the record as well as the petition of the I.O. allowed the prayer and directed to issue warrant of arrest. The petitioner did not challenge the said order immediately. Thereafter, on 11.06.2024, a petition along with execution report of the NBW issued by the learned Chief Judicial Magistrate against the petitioner was filed before the learned Chief Judicial Magistrate. The learned Chief Judicial Magistrate after recording its satisfaction and after going through the case diary and other materials placed by the prosecution was satisfied that there is sufficient material to reach the conclusion that the accused against whom warrant of arrest has been issued is absconding or concealing himself and it is not possible to execute the warrant of arrest and therefore allowed the petition for issuance of 2 Cr.M.P. No.2318 of 2024 proclamation under Section 82 Cr.P.C. to meet the ends of justice and fixed the time and place for appearance of the petitioner. 4. It is submitted by the learned counsel for the petitioner relying
Decision
This criminal miscellaneous petition is disposed of accordingly. 8. 9. High Court of Jharkhand, Ranchi Dated the 7th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 6 Cr.M.P. No.2318 of 2024