Chandrashekhar Mahatha @ Chandu, aged about 43 yrs., S/o Narayan Lal Mahatha, R/o Village v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2575 of 2020 ------ Chandrashekhar Mahatha @ Chandu, aged about 43 yrs., S/o Narayan Lal Mahatha, R/o Village Upar Ankura, P.O. Kharni, P.S. Barwadda, Dist. Dhanbad … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State : Mr. Shailesh, Advocate : Ms. Sushma Aind, Addl.P.P. ------ ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
Legal Reasoning
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 and set aside the order dated 22.07.2015 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby warrant of arrest was issued against the petitioner; to quash and set aside the order dated 14.08.2015 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby and where under the process under Section 82 of Cr.P.C. was issued against the petitioner; to quash and set aside the order dated 30.09.2015 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby and where under the process under Section 83 of Cr.P.C. was issued against the petitioner and to quash and 1 Cr. M.P. No.2575 of 2020 set aside the order dated 26.09.2016 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad took cognizance of the offence punishable under Sections 414, 34 of the Indian Penal Code against the petitioner. 3. At the very outset, learned counsel for the petitioner submits that the petitioner does not press the prayer for quashing the order dated 26.09.2016 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad took cognizance for the offence punishable under Sections 414, 34 of the Indian Penal Code against the petitioner. 4. Accordingly, the prayer of the petitioner to quash and set aside the said order dated 26.09.2016 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad took cognizance for the offence punishable under Sections 414, 34 of the Indian Penal Code against the petitioner, is rejected as not pressed. 5. The brief facts of the case is that on 22.07.2015, the Investigating Officer of the case prayed for issue of warrant of arrest inter alia against the petitioner who is one of the accused persons of the case. The learned Magistrate without recording its satisfaction that the petitioner is evading his arrest, has issued the warrant of arrest against the petitioner. On 14.08.2015, the Investigation Officer 2 Cr. M.P. No.2575 of 2020 of the case prayed for issuance of the proclamation under Section 82 of Cr.P.C. inter alia against the petitioner, who is one of the accused persons of the case without recording any satisfaction regarding the essential requirement for issuing the proclamation under Section 82 of Cr.P.C, the learned Magistrate issued the same. Similarly, on 30.09.2015, on the Investigating Officer making the prayer, the learned Judicial Magistrate issued the attachment order of the property of the petitioner under section 83 of the Code of Criminal Procedure. 6. Learned counsel for the petitioner submits that the learned Magistrate has committed gross illegality by issuing the warrant of arrest against the petitioner merely on the asking of the Investigation Officer without recording any satisfaction that the petitioner is evading his arrest. Hence, the same is not sustainable in law. Therefore, it is submitted that the order dated 22.07.2015 passed by the Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 whereby warrant of arrest was issued against the petitioner, being not sustainable in law, be quashed and set aside. 7. It is further submitted that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 14.08.2015 without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and that too without fixing any time and place for appearance of the accused person of the case, in respect of whom the proclamation under Section 82 Cr.P.C. was issued. It is then submitted that by the order dated 30.09.2015, without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, the court 3 Cr. M.P. No.2575 of 2020 concerned has passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C.; without mentioning the description of the property to be attached. Hence, it is submitted that the orders dated 14.08.2015 and 30.09.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015; being not in accordance with law, be quashed and set aside. 8. Learned Addl.P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 22.07.2015, 14.08.2015 and 30.09.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 and submits that the very fact that the learned Judicial Magistrate-1st Class, Dhanbad has issued the warrant of arrest, 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 Judicial Magistrate-1st Class, Dhanbad to be satisfied that there is justification for issuance of such warrant of arrest, proclamation and attachment order. Hence, it is submitted that this Cr.M.P., 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 by now it is a settled principle of law that Section 73 of the Cr.P.C., vests power upon the Magistrate of 1st Class to direct a warrant of any person within his local jurisdiction; who is inter alia accused of non-bailable offence and is evading his arrest. Now, coming to the facts of the case, the petitioner is 4 Cr. M.P. No.2575 of 2020 an accused of committing a non-bailable offence punishable under Section 414 of the Indian Penal Code but the learned Magistrate having not recorded its satisfaction to suggest that the petitioner is evading his arrest, and without recording the said satisfaction, having issued the warrant of arrest, against the petitioner, the same amounts to gross illegality. 10. Hence, the order dated 22.07.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 is not sustainable in law. Accordingly, the order dated 22.07.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 is quashed and set aside. 11. So far as the order dated 14.08.2015 is concerned, 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 Judicial Magistrate-1st Class, Dhanbad 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 in the said order, this Court has no hesitation in holding that the learned Judicial Magistrate-1st Class, Dhanbad has committed gross illegality 5 Cr. M.P. No.2575 of 2020 by issuing the said proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirements of law. Hence, the same is not sustainable in law and the continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 14.08.2015 be quashed and set aside. 12. Accordingly, the order dated 14.08.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 is quashed and set aside. 13. So far as order dated 30.09.2015 is concerned, it is a settled principle of law that the court issuing proclamation under Section 82 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of proclamation, 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 82 of Cr.P.C. was in fact made in accordance with law, certainly the learned Judicial Magistrate-1st Class, Dhanbad committed 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 dated 30.09.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 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 30.09.2015 6 Cr. M.P. No.2575 of 2020 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015, be quashed and set aside. 14. Accordingly, the order dated 30.09.2015 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Govindpur (Barwadda) P.S. Case No.231 of 2015 corresponding to G.R. No.2513 of 2015 is quashed and set aside. 15. The learned Judicial Magistrate-1st Class, Dhanbad may pass a fresh order in accordance with law. 16. 17.
Decision
In the result, this Cr.M.P. stands allowed to the aforesaid extent. In view of disposal of the instant Cr.M.P., the interim relief granted vide order dated 29.01.2021, is vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of August, 2024 AFR/ Animesh 7 Cr. M.P. No.2575 of 2020