Ashok Upadhayay @ Ashok Kumar Upadhayay aged about 55 years, Son of Late Bhagwat v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2604 of 2019 ------ Ashok Upadhayay @ Ashok Kumar Upadhayay aged about 55 years, Son of Late Bhagwat Upadhayay, Resident of- Ghatotand, Bazartand, P.O.- Ghatotand, P.S.- Mandu, District- Ramgarh, Jharkhand … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State ------ : Mr. Abhijeet Kr. Singh, Advocate Mr. Harsh Chandra, Advocate Md. Saif Ali Ansari, Advocate : Ms. Sushma Aind, Addl.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 482 of the Code of Criminal Procedure with a prayer to quash five different orders passed by the learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009. 3. The brief facts of the case is that the petitioner is an accused of the said case in which charge sheet has been submitted alleging commission of the offences punishable under Sections 426 and 427 of the Indian Penal Code. Upon submission of charge sheet vide order dated 05.02.2010 summons were ordered to be issued to the accused persons of the case including the petitioner. Summons has never been served upon the petitioner. Bailable warrant of arrest was issued against the petitioner vide order dated 22.07.2010 and non-bailable 1 Cr. M.P. No.2604 of 2019 warrant of arrest was issued on 28.10.2010. On 15.04.2011, without recording any satisfaction that the petitioner is absconding or concealing himself to evade his arrest and without fixing any time and place for appearance of the petitioner, proclamation under Section 82 of Cr.P.C. was issued and without any report that the proclamation has been made being received in the record, vide order dated 21.02.2012, the attachment order of the property of the petitioner under Section 83 of Cr.P.C. was issued but erroneously, in paragraph No.1 and in prayer portion of this criminal miscellaneous petition, it has been mentioned that vide order dated 12.12.2011 attachment order of property under Section 83 of Cr.P.C was made. 4. It is next submitted that ultimately vide order dated 23.08.2012, the petitioner was declared permanent absconder by the learned Judicial Magistrate-1st Class, Hazaribagh and the learned Judicial Magistrate directed to transmit the case record to the District Record Room. The petitioner has challenged the orders dated 23.08.2012, 21.02.2012, 15.04.2011, 28.10.2010 and 22.07.2010, in this, criminal miscellaneous petition. 5. The learned counsel for the petitioner submits that the learned Magistrate committed a grave illegality by issuing the bailable warrant of arrest without receipt of the service report of the summons issued to the petitioner and without the execution report of the bailable warrant of arrest issued against him having been received, committed a grave illegality in issuing the non- bailable warrant of arrest. 6. Learned counsel for the petitioner next submits that vide order dated 15.04.2011, a proclamation under Section 82 of Cr.P.C. has been issued without following the due process of law and without recording the satisfaction that the 2 Cr. M.P. No.2604 of 2019 petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing the proclamation under Section 82 of Cr.P.C. that too without mentioning any time and place for appearance of the petitioner. Hence, it is submitted that the said order dated 15.04.2011 being not in accordance with law, be quashed and set aside. It is then submitted by the learned counsel for the petitioner that the learned Judicial Magistrate vide its order dated 21.02.2012 has issued the attachment order of the property inter alia against the petitioner without mentioning the property to be attached and without recording any reason for the necessity for issuing the attachment order and without any information available in the record that the proclamation under Section 82 of Cr.P.C. was ever made. Hence, it is submitted that the order dated 21.02.2012 also is not in accordance with law. 7. Learned counsel for the petitioner further submits that so far as the order dated 23.08.2012 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 suggest that there is no immediate prospect for arresting the petitioner, the learned Judicial Magistrate committed a grave illegality in declaring the petitioner an absconder and issuing permanent warrant of arrest. Hence, it is submitted that the prayer made by the petitioner in this Cr.M.P. be allowed. 8. The learned Addl.P.P. appearing for the State on the other hand opposes the prayer to quash the said five orders already mentioned in the foregoing paragraphs of this Judgment and submits that the very fact that the learned 3 Cr. M.P. No.2604 of 2019 Judicial Magistrate has issued the bailable warrant of arrest, non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C., the orders 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 Judicial Magistrate to be satisfied that there is justification for issuance of such bailable warrant of arrest, non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C., 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. 9. 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 since the learned Magistrate had already passed an order for issue of summons to the petitioner so without the service report of the summons issued, the Magistrate ought not have issued the bailable warrant of arrest vide order dated 22.07.2010. Hence, the order dated 22.07.2010 is not sustainable in law and liable to be quashed and set aside. Therefore, the same is quashed and set aside. 10. So far as the order dated 28.10.2010 is concerned, the learned Magistrate has certainly committed a grave illegality by issuing the non-bailable warrant of arrest even though the execution report of the bailable warrant of arrest was not received. Since the learned Magistrate has issued the bailable warrant of arrest vide order dated 22.07.2010, it was incumbent upon the learned judicial Magistrate to ensure that the same is executed and the report of the same is received back. Having not done so but still issuing the non-bailable warrant of 4 Cr. M.P. No.2604 of 2019 arrest amounts to a gross illegality. Hence, the order dated 28.10.2010 is also not sustainable in law. Therefore, the same is quashed and set aside. 11. So far as the order dated 15.04.2011 is concerned, 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 the 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 Judicial Magistrate 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 Judicial Magistrate has committed gross illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying the mandatory requirements of law. Hence, the same is not sustainable in law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 15.04.2011, be quashed and set aside. 12. Accordingly, the order dated 15.04.2011 passed by the learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set aside. 13. So far as the order dated 21.02.2012 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of the proclamation, order for attachment of any property movable or immovable or 5 Cr. M.P. No.2604 of 2019 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 Judicial Magistrate- 1st Class, Hazaribagh has committed gross 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 of attachment of the property of the petitioner dated 21.02.2012 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 same, be quashed and set aside. 14. Accordingly, the order dated 12.12.2011 passed by the learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set aside. 15. So far as the order dated 23.08.2012 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. 16. 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 has absconded or that there is no immediate prospect of arresting him. In the 6 Cr. M.P. No.2604 of 2019 absence of that, certainly the learned Judicial Magistrate-1st Class, Hazaribagh has committed a grave illegality by declaring the petitioner to be an absconder and issuing permanent warrant of arrest against the petitioner. Hence, this Court is of the considered view that the order dated 23.08.2012 passed by the learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009 being not sustainable in law. Hence, the same be quashed and set aside. 17. Accordingly, the order dated 23.08.2012 passed by the the learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set aside. 18. This Criminal Miscellaneous Petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 05th of September, 2024 AFR/ Saroj 7 Cr. M.P. No.2604 of 2019