Opposite Party v. P R E S E N T HON
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3019 of 2024 Md. Saddam Hussain @ Saddam Parwez, aged about 34 years, son of Late Md. Ismail, resident of Cross Road No.3, Old Purulia Road, Zakir Nagar, P.O. and P.S. –Azad Nagar, Mango, Jamshedpur, District – Singhbhum East. .... Petitioner The State of Jharkhand …. Opposite Party Versus P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State : Mr. Praveen Shankar Dayal, Advocate : Mr. Vishwanath Roy, 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 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 with several prayers but the learned counsel for the petitioner submits that the petitioner does not press the prayer for quashing the order dated 28.03.2016. Hence, the prayer to quash the order dated 28.03.2016, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 is rejected as not pressed. 3. So far as the order dated 28.07.2017, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 is concerned, it is submitted by the learned counsel for the petitioner 1 Cr.M.P. No.3019 of 2024 that by the said order, the proclamation under Section 82 Cr.P.C. has been issued without following the mandatory provision of law. It is next submitted by the learned counsel for the petitioner that vide orders dated 08.02.2018 and 17.02.220, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013, the attachment order of property of the petitioner who is the accused person of the case has been issued without recording any satisfaction that the proclamation under Section 82 Cr.P.C. has ever been made and without following the mandatory provisions of law. Hence, the same be also quashed and set aside. 4. Learned Spl. P.P. appearing for the State on the other hand vehemently opposes the prayer and submits that the very fact that the learned Chief Judicial Magistrate, Dumka has issued the 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 Chief Judicial Magistrate, Dumka to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this criminal miscellaneous petition, being without any merit, be dismissed. 5. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the order dated 28.07.2017, passed by the learned Chief 2 Cr.M.P. No.3019 of 2024 Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 is concerned, perusal of the same reveals that only because the petitioner who is the accused of the case was absent on that day, by single sentence order, the learned Chief Judicial Magistrate, Dumka has directed the office to issue the proclamation under Section 82 Cr.P.C. 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 made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 Cr.P.C. it must mention the time and place for appearance of the accused person in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As already indicated above since the learned Chief Judicial Magistrate, Dumka 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 Chief Judicial Magistrate, Dumka has committed illegality by issuing the said proclamation under Section 82 Cr.P.C. without complying 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 and this is a 3 Cr.M.P. No.3019 of 2024 fit case where the order dated 28.07.2017, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 be quashed and set aside. Accordingly, the order dated 28.07.2017, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013, is quashed and set aside. 6. So far as the order dated 08.02.2018 and 17.02.2020, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 are concerned, on those two days also, as only the petitioner who is the accused person of the case did not appear, therefore, by a single sentence order, the learned Chief Judicial Magistrate, Dumka has ordered for issue of the attachment order of the property of the petitioner, who is the accused person of the case. 7. So far as the said two orders dated 08.02.2018 and 17.02.2020, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 are concerned, it is a settled principle of law that the court issuing proclamation under Section 82 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 4 Cr.M.P. No.3019 of 2024 belonging to the proclaimed person. Now, in the absence of any material in the record to suggest that the proclamation under Section 82 Cr.P.C. was in fact made in accordance with law, certainly the learned Chief Judicial Magistrate, Dumka committed illegality by passing the order of attachment of property of the petitioner, 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 orders dated 08.02.2018 and 17.02.2020, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013 are 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 said orders dated 08.02.2018 and 17.02.2020, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013, be quashed and set aside. 8. 9. Accordingly, the orders dated 08.02.2018 and 17.02.2020, passed by the learned Chief Judicial Magistrate, Dumka in connection with Dumka (T) P.S. Case No. 219 of 2013 corresponding to G.R. (S) No. 1603 of 2013, are quashed and set aside. The learned Chief Judicial Magistrate, Dumka may pass a fresh order in accordance with law. 5 Cr.M.P. No.3019 of 2024 10. This criminal miscellaneous petition is allowed to the aforesaid extent only. High Court of Jharkhand, Ranchi Dated the 28th October, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 6 Cr.M.P. No.3019 of 2024