Chandra Shekhrendra Raman S/o Har Kishor Prasad aged about 59 years Resident of Village v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2736 of 2024 ------ Chandra Shekhrendra Raman S/o Har Kishor Prasad aged about 59 years Resident of Village- Rohini, P.O. & P.S. Jasidih, Dist- Deoghar … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State : Mr. Lakhan Chandra Roy, Advocate : Mr. Bhola Nath Ojha, Spl.P.P. ------ ------ 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 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash three different orders passed by the learned S.D.J.M., Pakur being orders dated 23.08.2014, 03.03.2015 and 18.04.2015 in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007. 3. The brief fact of the case is that the petitioner is the accused of the said case in which charge-sheet has been submitted against the petitioner for having committed the offences punishable under Sections 419, 420/34 of the Indian Penal Code. Upon submission of the charge-sheet, summon and thereafter bailable warrant of arrest was issued against the petitioner. On 23.08.2014 though the execution report of the bailable warrant of arrest was not received, the learned S.D.J.M., Pakur ordered for issuance of the non-bailable warrant of arrest. Vide order dated 03.03.2015, without recording any satisfaction that the petitioner is absconding or concealing himself and without 1 Cr. M.P. No.2736 of 2024 fixing any date and time for appearance, the learned S.D.J.M., Pakur ordered for issuance of the process under Section 82 and 83 of the Cr.P.C. simultaneously and ultimately vide order dated 18.04.2015, the petitioner was declared a permanent absconder by the S.D.J.M., Pakur and the S.D.J.M., Pakur transmitted the case records to the District Record Room. The petitioner has challenged the said three orders. 4. Learned counsel for the petitioner submits that the learned S.D.J.M., Pakur committed a grave illegality by issuing the non-bailable warrant of arrest vide order dated 23.08.2014 though admittedly execution report of the bailable warrant of arrest has not been received. It is then submitted that vide order dated 03.03.2015, the proclamation under Section 82 of Cr.P.C. and the attachment order under Section 83 of Cr.P.C. have been issued without following the due process of law and without recording any satisfaction that the petitioner is absconding or concealing himself to evade his arrest or there is any chance of the petitioner leaving the jurisdiction of court or fleeing away which is a sine qua non for issuing proclamation under Section 82 and 83 of Cr.P.C. simultaneously that too without mentioning any time and place for appearance of the petitioner. Hence, it is submitted that the said orders dated 23.08.2014 and 03.03.2015 being not in accordance with law, hence, the same be quashed and set aside. 5. It is then submitted that so far as the order dated 18.04.2015 is concerned, the condition precedent for declaring a person absconder and issuing permanent warrant of arrest is that, it must be proved before the court concerned that the accused has absconded and there is no immediate prospect of arresting him but in this case, there being no material in the record to 2 Cr. M.P. No.2736 of 2024 suggest that there is no immediate prospect for arresting the petitioner, the learned S.D.J.M. Pakur committed a grave illegality in declaring the petitioner an absconder and issuing permanent warrant of arrest. Hence, it is submitted that the order dated 18.04.2015, being not sustainable in law, be quashed and set aside. 6. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners to quash the said three orders and submits that the very fact that the learned S.D.J.M. Pakur has issued the non- bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. and the order declaring the petitioner to be an absconder itself shows that there were materials available in the record for the learned S.D.J.M. Pakur to be satisfied that there is justification for issuance of such non-bailable warrant of arrest, proclamation, order for attachment and declaring the petitioner, who is the accused person of the case concerned, to be an absconder. Hence, it is submitted that this Criminal Miscellaneous Petition, 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 it is evident from the order dated 23.08.2014 that the learned S.D.J.M. Pakur issued the non-bailable warrant of arrest but prior to that by 23.08.2014, the execution report of the said non-bailable warrant of arrest was not received in the record. Therefore, it was incumbent upon the learned S.D.J.M. Pakur to ensure the execution of bailable warrant of arrest issued against the petitioner before issuing the non-bailable warrant of arrest against the petitioner but having not done so that too without any plausible reason by straightway 3 Cr. M.P. No.2736 of 2024 issuing the non-bailable warrant of arrest; in the considered opinion of this Court, the learned S.D.J.M. Pakur has committed a grave illegality. Accordingly, the order dated 23.08.2014 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007, is not sustainable in law; hence the same is liable to be quashed and set aside. 8. Accordingly, the order dated 23.08.2014 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007, is quashed and set aside. 9. So far as the order dated 03.03.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is concerned, it is 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 and if the court intends to issue the attachment order under Section 83 of Cr.P.C. simultaneously with the proclamation under Section 82 of Cr.P.C., the additional requirement is that, the court must record its satisfaction on the basis of affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of the whole or any part of his property or is about to remove whole or any part of his property, from the local jurisdiction of the court but coming to the facts of the case, neither the 4 Cr. M.P. No.2736 of 2024 learned S.D.J.M. Pakur has recorded any satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor fixed any time and place for appearance of the petitioner, who is the accused person of the case nor recorded any satisfaction that the accused person is about to dispose of the whole or any part of his property or is about to remove whole or any part of his property from the local jurisdiction of the court. Hence, this Court has no hesitation in holding that the order dated 03.03.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is not sustainable in law and the continuation of the same will amount to abuse of process of law, hence, the same is liable to be quashed and set aside. 10. Accordingly, the order dated 03.03.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is quashed and set aside. 11. So far as the order dated 18.04.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is concerned, it is a settled principle of law that before exercising the power under Section 299 of the Code of Criminal Procedure, it is necessary that all conditions prescribed must be strictly complied with namely the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as has been held by the Hon’ble Supreme Court of India in the case of Nirmal Singh vs. State of Haryana, reported in (2000) 4 SCC 41. 12. Now, coming to the facts of the case, the perusal of the record reveals that there is absolutely no material in the record to suggest that the petitioner 5 Cr. M.P. No.2736 of 2024 has absconded or that there is any immediate prospect of arresting him. In the absence of that, certainly the learned S.D.J.M. Pakur has committed a grave illegality by declaring the petitioner to be an absconder and issuing permanent warrant of arrest. Hence, this Court is of the considered view that the said order dated 18.04.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is not sustainable in law and is liable to be quashed and set aside. 13. Accordingly, the order dated 18.04.2015 passed by the learned S.D.J.M. Pakur in connection with Pakur (M) P.S. Case No.44 of 2007 corresponding to G.R. No.100 of 2007 is quashed and set aside. 14. The learned S.D.J.M. Pakur may pass a fresh order in accordance with law. 15.
Decision
In the result, this Cr.M.P. stands allowed to the aforesaid extent. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th of November, 2024 AFR/ Animesh 6 Cr. M.P. No.2736 of 2024