Dhanbad, Jharkhand v. The State of Jharkhand
Case Details
1 Cr.M.P. No.3865 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3865 of 2022 Feku Ansari @ Khurshid Ansari @ Khurshid Alam, aged about 32 years, son of Md. Ismail Ansari, resident of Rahmat Nagar, Siblibari, P.O. – Chirkunda, P.S. –Chirkunda (Kumardhubi O.P.), District –Dhanbad, Jharkhand. .... Petitioner Versus The State of Jharkhand …. Opposite Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State
Legal Reasoning
: Mr. J.N. Upadhyay, Advocate : Mr. Raj Nandan Chatterjee, Advocate : Mr. Bhola Nath Ojha, Addl. 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 482 Cr.P.C. with a prayer to quash the orders dated 25.06.2015, 18.08.2016 & 28.05.2018 passed by the learned Chief Judicial Magistrate, Dhanbad, in Chirkunda (Kumardubi) P.S. Case No. 215 of 2013 corresponding to G.R. Case No. 3658 of 2013 and order dated 12.09.2022, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 141 of 2022 in connection with Chirkunda (Kumardubi) P.S. Case No. 215 of 2013 corresponding to G.R. Case No. 3658 of 2013. 3. The brief fact of the case is that the petitioner was avoiding to appear in the court at the stage of framing of charge. Vide order dated 20.05.2015, the prayer for representation of the petitioner- 2 Cr.M.P. No.3865 of 2022 who is an accused of the said case under Section 317 Cr.P.C., was allowed as the last chance and the case was fixed to 25.06.2015 for consideration of charge but as on 25.06.2015, the petitioner did not appear before the trial court and again filed a petition under Section 317 Cr.P.C. with a prayer for the present by his lawyer, thereby making a situation, where the charge in the case could not be framed against him, because of his absence from Court. The said petition of the petitioner with a prayer for representation through the lawyer was rejected and the bail of the petitioner, earlier granted to him, was cancelled and warrant of arrest was issued against him. Vide order dated 18.08.2016, without receipt of the Execution Report of the non-bailable warrant of arrest, without recording any satisfaction that the petitioner is absconding or concealing to evade arrest and without fixing any date and place for appearance of the petitioner, process under Section 82/83 Cr.P.C. was issued for appearance/attachment of property, of the petitioner and vide order dated 28.05.2018, in the said G.R. Case No. 3658 of 2013, as it appeared to the Chief Judicial Magistrate, that since all the processes have been exhausted to secure the attendance of the accused but as he was still absent, without any execution report of the proclamation under Section 82 Cr.P.C. or the process under Section 83 Cr.P.C., the petitioner was declared absconder and permanent warrant of arrest was issued against him and summons to the witnesses were also issued. 3 Cr.M.P. No.3865 of 2022 4. So far as the order dated 12.09.2022 in Criminal Revision No. 141 of 2022, passed by the learned Sessions Judge, Dhanbad is concerned, as the said revision was could not be filed by the petitioner within the prescribed period of limitation, the petitioner filed an application under Section 5 of Limitation Act, contending therein that he had no knowledge about the said order dated 28.05.2018 and prayed to condone the delay and the learned Sessions Judge, without finding any sufficient reason for the inordinate delay, did not condone the delay and dismissed the application under Section 5 of the Limitation Act and also dismissed the Criminal Revision in limine. 5. It is submitted by the learned counsel for the petitioner that in the absence of any execution report of non-bailable warrant of arrest, the learned Chief Judicial Magistrate ought not have issued the proclamation under Section 82 Cr.P.C. and the process under Section 83 Cr.P.C. together by a single order without recording any reason and recording that it is satisfied by affidavit or otherwise, that the person relating to whom the proclamation is to be issued, is about to dispose of whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the court. It is next submitted that without the report of any proclamation or report regarding any attachment property under Section 83 Cr.P.C., in a mechanical manner, the learned Chief Judicial Magistrate has ordered for issue of order declaring the petitioner to be an absconder and issued permanent warrant of arrest against him. Hence, it is submitted that the order 4 Cr.M.P. No.3865 of 2022 dated 25.06.2015, 18.08.2016 & 28.05.2018 passed by the learned Chief Judicial Magistrate, Dhanbad, in Chirkunda (Kumardubi) P.S. Case No. 215 of 2013 corresponding to G.R. Case No. 3658 of 2013 and order dated 12.09.2022, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 141 of 2022 in connection with Chirkunda (Kumardubi) P.S. Case No. 215 of 2013 corresponding to G.R. Case No. 3658 of 2013 be quashed and set aside. 6. The learned Addl. P.P. on the other hand submits that there is absolutely no illegality in the order dated 25.06.2015, passed by he learned Chief Judicial Magistrate, Dhanbad as the petitioner in- spite of being given several opportunities avoided his personal appearance to delay the criminal trial, by avoiding framing of charge against him, and did not even obey the specific order of the court to remain present in person, on the next date fixed, when for his nonappearance, his bail was cancelled. It is then submitted that, so far as the order passed by the learned Sessions Judge is concerned, the petitioner could not satisfy the learned Sessions Judge about the inordinate delay of 1388 days in filing the Criminal Revision. Hence, the prayer for condonation of delay, filed under Section 5 of the Limitation Act, 1963 has rightly been rejected by the learned Sessions Judge vide order dated 12.09.2022. It is also submitted that there is also no illegality in the order dated 18.08.2016 and 28.05.2018, keeping in view the conduct of the petitioner in deliberately not appearing in the court to avoid the framing of charge against him and even though, he 5 Cr.M.P. No.3865 of 2022 was very much aware about the rejection of his application under Section 317 Cr.P.C. and that warrant of arrest has been issued against him, still he did not appear in the court concerned. It is lastly submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the order dated 25.06.2015, passed by the learned Chief Judicial Magistrate in the case is concerned, the case was fixed to 25.06.2015 for framing of charge and on the pervious date, the prayer for representation of the petitioner was allowed as the last chance. So, it was incumbent upon the petitioner to appear before the learned Chief Judicial Magistrate in person but even then, the petitioner having not appeared on 25.06.2015 in person, for framing of the charge, this Court do not find any illegality in the order of the learned Chief Judicial Magistrate rejecting the prayer for representation of the petitioner filed under Section 317 Cr.P.C. and cancelling the bail of the petitioner and issuing warrant of arrest, more so because, the petitioner could not put forth any cogent and compelling reasons, for such nonappearance in person. Hence, the order dated 25.06.2015 do not warrant any interference of this Court in exercise of it its jurisdiction under Section 482 Cr.P.C. 8. So far as the order dated 18.08.2016 is concerned, the learned Chief Judicial Magistrate certainly erred by not recording its satisfaction that the petitioner is absconding or concealing to evade arrest which is a sine-qua-non for exercising the jurisdiction 6 Cr.M.P. No.3865 of 2022 of issuing the proclamation under Section 82 Cr.P.C. and that too, in the absence of the execution report of the non-bailable warrant of arrest. In the absence of the execution report of the warrant of arrest, there is no way, the learned Chief Judicial Magistrate could have been satisfied regarding the petitioner absconding or concealing himself, to evade his arrest. Further, the learned Chief Judicial Magistrate also failed to mention the date and place where the petitioner has to appear in the said order dated 18.08.2016, which is a mandatory requirement of law. Accordingly, the said order dated 18.08.2016 is not sustainable in law and the same is liable to be set aside. 9. So far as the order dated 28.05.2018, passed in G.R. Case No. 3658 of 2013 is concerned, without receipt of the report of the proclamation made under Section 82 Cr.P.C. or the attachment of property under Section 83 Cr.P.C., the learned Chief Judicial Magistrate certainly mechanically has exercised the power by declaring the petitioner to be an absconder and issuing permanent warrant of arrest. Because in the absence of any material, there is no way the learned Chief Judicial Magistrate could have come to a conclusion that it is proved that the petitioner has absconded and that there is no immediate prospect of arresting him and the learned Chief Judicial Magistrate even has not mentioned in the said order that it is proved to its satisfaction that the accused has absconded and that there is no immediate prospect of arresting him which is a sine-qua-non for exercising the jurisdiction under Section 299 Cr.P.C. by a trial court. Under such circumstances, the 7 Cr.M.P. No.3865 of 2022 said order dated 28.05.2018, passed in G.R. Case No. 3658 of 2013 by the learned Chief Judicial Magistrate is also not sustainable in law and the same is also liable to be set aside. 10. So far as the order dated 12.09.2022, passed in Criminal Revision No. 141 of 2022 by the learned Sessions Judge, Dhanbad is concerned, this Court is of the considered view that the learned Sessions Judge, in the absence of any sufficient cause having being shown by the petitioner for the inordinate delay of 1388 days, based on cogent reasons and materials, has rejected the prayer for condonation of delay. Hence, there is no illegality in the said order as well and the same also do not warrant interference by this Court. 11. In view of the discussions made above, the order dated 18.08.2016 and 28.05.2018, passed by the learned Chief Judicial Magistrate, Dhanbad in Chirkunda (Kumardubi) P.S. Case No. 215 of 2013 corresponding to G.R. Case No. 3658 of 2013 is quashed and set aside. The learned Chief Judicial Magistrate, Dhanbad is directed to pass fresh orders in accordance with law. 12.
Decision
This criminal miscellaneous petition is disposed of accordingly. High Court of Jharkhand, Ranchi Dated the 16th May, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)