Bhagirath Bhuiyan @ Bhagarit Bhuiyan v. The State of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State : Mr. Vijay Kumar Sharma, Advocate : Mr. P.K. Chatterjee, Spl. P.P. ….. By the Court:-

2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the orders dated 26.05.2011, 01.08.2012,

31.08.2012 and 16.11.2012, passed by the learned Judicial Magistrate -1st Class, Chatra, in connection with U.C. Case No. 255 of 2006 whereby and where under respectively non-bailable warrant of arrest has been issued against the petitioner, proclamation under Section 82 Cr.P.C. has been issued against the petitioner, process under section 83 Cr.P.C. against the petitioner has been issued and the petitioner has been declared to be an absconder and permanent warrant of arrest has been issued 299 Cr.P.C. and order for deposit of the case record in the record room has been passed. 2 Cr.M.P. No. 2666 of 2023

3. It is submitted by the learned counsel for the petitioner that though bailable warrant of arrest was issued, vide order dated

26.05.2011, the learned Judicial Magistrate passed order for issuance of non-bailable warrant of arrest without the execution report of the bailable warrant of arrest issued against the petitioner and vide order dated 01.08.2012, without recording any satisfaction that the petitioner is absconding or concealing himself to evade his arrest, passed order inter alia against the petitioner for issuance of the proclamation under Section 82 Cr.P.C. It is then submitted by the learned counsel for the petitioner that on

31.08.2012, the learned Magistrate without the execution report of the proclamation under Section 82 Cr.P.C. has passed order for issuance of the process under section 83 Cr.P.C. without mentioning the description of the property to be attached and without execution report of the proclamation under Section 82 Cr.P.C.; vide order dated 16.11.2012, the learned Magistrate has declared the petitioner to be an absconder and ordered for issuance of permanent warrant of arrest against him. It is next submitted by the learned counsel for the petitioners that the said orders have been passed without following the mandatory provisions of law. Hence, it is submitted that the order dated

26.05.2011, 01.08.2012, 31.08.2012 and 16.11.2012, passed by the learned Judicial Magistrate -1st Class, Chatra, in connection with U.C. Case No. 255 of 2006 be quashed and set aside.

4. The Spl. P.P. on the other hand submits that since the learned Magistrate has issued the non-bailable warrant of arrest, 3 Cr.M.P. No. 2666 of 2023 proclamation under Section 82 Cr.P.C., process under Section 83 Cr.P.C. and has declared the petitioner to be an absconder, so it is crystal clear that upon application of mind, the learned Judicial Magistrate has passed the said orders. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

5. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the order dated 26.05.2011 is concerned, it is a settled principle of law that once a court issues a bailable warrant of arrest, it must wait for the execution report of the same before passing an order of issuing non-bailable warrant of arrest but in this case, undisputedly, the learned Judicial Magistrate by its order dated 26.05.2011 has ordered for issuance of the non-bailable warrant of arrest against the petitioner even though the execution report of the bailable warrant of arrest was not received. Hence, this Court has no hesitation in holding that the said order dated 26.05.2011 for issuance of the non-bailable warrant of arrest against the petitioner; is not in accordance with law, therefore, the same is liable to be set aside.

6. So far as the order dated 01.08.2012 is concerned, by now it is a settled principle of law that the court which issues the proclamation under Section 82 Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 Cr.P.C. is issued was either absconding or concealing himself to evade his arrest and once it decides to issue the 4 Cr.M.P. No. 2666 of 2023 proclamation, it must mention in the order itself by which such proclamation under Section 82 Cr.P.C. is issued, the time and place for appearance of the accused person in respect of whom the proclamation under section 82 Cr.P.C. is issued but in this case, the learned Judicial Magistrate by not following the settled principle of law, without recording its satisfaction that the petitioner was absconding or concealing himself to evade his arrest, has passed order for issuance of the proclamation under Section 82 Cr.P.C. and has also not fixed the time and place for appearance of the petitioner. Hence, this Court has no hesitation in holding that the order dated 01.08.2012 is also not sustainable in law and is liable to be set aside.

7. So far as the order dated 31.08.2012 is concerned, the learned Judicial Magistrate without any report of the proclamation under Section 82 Cr.P.C. has casually passed the order for attachment of the property of the petitioner without mentioning the specific name of the property to be attached and without recording any reason in writing for issuing such order under Section 83 Cr.P.C. Hence, the said order dated 31.08.2012; in the considered opinion of this Court is also not sustainable in law and the same is liable to be set aside.

8. So far as the order dated 16.11.2012 is concerned, it is a settled principle of law that before exercising the jurisdiction under the said provision of law, it must be proved that the accused of the case is absconding and there is no immediate prospect of arresting him. In this case, there is absolutely nothing has been mentioned 5 Cr.M.P. No. 2666 of 2023 in the order dated 16.11.2012 to the effect that it is proved that the petitioner who was an accused person of the said case was absconding or that there is no immediate prospect of the petitioner being arrested. In the absence of such satisfaction, the exercise of the jurisdiction under Section 299 Cr.P.C. to record evidence in the absence of the accused, passed by the learned Judicial Magistrate is also not sustainable in law.

9. In view of the discussions made above, the orders dated

26.05.2011, 01.08.2012, 31.08.2012 and 16.11.2012, passed by the learned Judicial Magistrate -1st Class, Chatra, in connection with U.C. Case No. 255 of 2006 are quashed and set aside. The learned Judicial Magistrate may pass any fresh order in accordance with law. In the result, this criminal miscellaneous petition is

11. allowed. High Court of Jharkhand, Ranchi Dated the 3rd October, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)