The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2811 of 2020 Nisha Devi, age 30 years old, wife of Fulchand Oraon, resident of village –Banhe, P.O. & P.S. –Piparwar, District -Chatra. The State of Jharkhand …. Opp. Party Versus .... Petitioner P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State
Legal Reasoning
: Mr. Sabyasanchi, Advocate : Mr. Sanjay Kr. Srivastava, Addl. P.P. 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 the orders dated 29.05.2018, 11.09.2018 and 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 corresponding to G.R. No.1665 of 2017 but the petitioner abandons her prayer to quash the order dated 29.05.2018 and confines her prayer to quash the orders dated 11.09.2018 and 21.02.2019. Accordingly, the portion of the prayer to quash the order dated 29.05.2018 is rejected as not pressed. 3. The brief facts of the case so far as the prayer for quashing the orders dated 11.09.2018 and 21.02.2019 is concerned, on 11.09.2018, the I.O. of the case prayed for issuance of the proclamation under Section 82 Cr.P.C. against the petitioner and the learned Magistrate without recording any satisfaction that 1 Cr.M.P. No.2811 of 2020 the petitioner is absconding or concealing herself to evade her arrest, issued the proclamation under Section 82 Cr.P.C. and on 21.02.2019, on a prayer being made by the I.O. of the case to issue the attachment order under Section 83 Cr.P.C. against the petitioner, the same was issued by the learned Sub Divisional Judicial Magistrate, Chatra. 4. Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 11.09.2018 without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing herself to evade her arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the orders dated 11.09.2018 and 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 corresponding to G.R. No.1665 of 2017; being not in accordance with law, be quashed and set aside. 5. Learned Addl. P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 11.09.2018 and 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 2 Cr.M.P. No.2811 of 2020 corresponding to G.R. No.1665 of 2017 and submits that the very fact that the learned Sub Divisional Judicial Magistrate, Chatra has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment of property under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Sub Divisional Judicial Magistrate, Chatra 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. 6. 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 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 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 Cr.P.C. is issued. As already indicated above since the Sub Divisional Judicial Magistrate, Chatra has neither recorded its satisfaction that the petitioner is absconding or concealing herself to evade her arrest nor fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the Sub Divisional Judicial 3 Cr.M.P. No.2811 of 2020 Magistrate, Chatra has committed 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 the continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 11.09.2018 be quashed and set aside. Accordingly, the order dated 11.09.2018 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 corresponding to G.R. No.1665 of 2017, is quashed and set aside. 7. So far as the order dated 21.02.2019 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 the time after the issue of proclamation, may 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 Sub Divisional Judicial Magistrate, Chatra 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 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case 4 Cr.M.P. No.2811 of 2020 No.49 of 2017 corresponding to G.R. No.1665 of 2017 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 order dated 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 corresponding to G.R. No.1665 of 2017, be quashed and set aside. 8. Accordingly, the said order dated 21.02.2019 passed by the learned Sub Divisional Judicial Magistrate, Chatra in Piparwar P.S. Case No.49 of 2017 corresponding to G.R. No.1665 of 2017, is quashed and set aside. 9. The learned Sub Divisional Judicial Magistrate, Chatra may pass a fresh order in accordance with law. 10. In the result, this criminal miscellaneous petition stands allowed. High Court of Jharkhand, Ranchi Dated the 22nd July, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 5 Cr.M.P. No.2811 of 2020