Dharamdeo Mistry, aged about 57 years, S/o Late Jago Mistry, Resident of village –Awsane v. 1. The State of Jharkhand 2. Raj Kumar Mistry, R/o Village –Awsane, Tola –Chechani
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3901 of 2022 Dharamdeo Mistry, aged about 57 years, S/o Late Jago Mistry, Resident of village –Awsane, P.S. –Chainpur, P.O. –Chando, District – Palamau. .... Petitioner Versus 1. The State of Jharkhand 2. Raj Kumar Mistry, R/o Village –Awsane, Tola –Chechani, P.S. – Chainpur, District -Palamau. …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For the O.P. No.2
Legal Reasoning
: Mr. Jai Shankar Tripathi, Advocate : Mrs. Kumari Rashmi, Addl. P.P. : Mr. Manoj Kr. No.2, Advocate ….. By the Court:- 1. 2. Heard the parties. 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 four different orders passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007. 3. At the outset, the learned counsel for the petitioner submits that the petitioner submits that the petitioner does not press the prayer to quash the order dated 22.08.2009 and confines his prayer only for quashing the orders dated 13.01.2010, 05.08.2010 and 1 Cr.M.P. No.3901 of 2022 16.09.2010, passed in connection with the said Complaint Case No. 934 of 2007. 4. Accordingly, the prayer to quash the order dated 22.08.2009 is rejected as not pressed. 5. The brief facts of the case is that consequent upon inter-alia the petitioner not appearing before the trial court even though he was on bail, the trial court vide order dated 22.08.2009 ordered issue of warrant of arrest inter-alia against the petitioner. On 13.01.2010, as the accused persons were absent, the learned Judicial Magistrate ordered the office clerk to issue the process under Section 82 Cr.P.C. against the absent accused persons. Vide order dated 05.08.2010, the learned Judicial Magistrate ordered for issuance of the proclamation under Section 83 Cr.P.C. and vide order dated 16.09.2010, the learned Judicial Magistrate declared the petitioner to be an absconder and issued permanent warrant of arrest against him also. 6. Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 13.01.2010 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. that too without mentioning any time and place for appearance of the petitioner. Hence, it is submitted that the said order dated 13.01.2010 being not in accordance with law be quashed and set 2 Cr.M.P. No.3901 of 2022 aside. It is then submitted by the learned counsel for the petitioner that the learned Judicial Magistrate vide its order dated 05.08.2010 has issued the attachment order of the property inter- alia of the petitioner without mentioning the property to be attached and without recording any reason for necessity for issuing the attachment order. Hence, it is submitted that the order dated 05.08.2010 being also not in sustainable in law, the same be also quashed and set aside. It is next submitted by the learned counsel for the petitioner that so far as the order dated 16.09.2010 is concerned, the condition precedent for declaring a person absconder and issuing permanent warrant of arrest is that, it must be proved before the court concerned, that the accused has absconded and there is no immediate prospect of arresting him but in this case, there being no material in the record to suggest that there is no immediate prospect for arresting the petitioner, the learned Judicial Magistrate committed a grave illegality in declaring him absconder and issued permanent warrant of arrest. Hence, it is submitted that the order dated 16.09.2010 being not sustainable in law, the same be also quashed and set aside. 7. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand opposes the prayer to quash the order dated 13.01.2010, 05.08.2010 and 16.09.2010, passed by the learned Judicial Magistrate -1st Class, Palamau in Complaint Case No. 934 of 2007 and submits that the very fact that the learned Judicial Magistrate has issued the proclamation under 3 Cr.M.P. No.3901 of 2022 Section 82 of Cr.P.C., the order of attachment under Section 83 of Cr.P.C. and the order declaring inter-alia the petitioner to be an absconder itself shows that there were materials available in the record for the learned Judicial Magistrate to be satisfied that there is justification for issuance of such proclamation, passing order for attachment and declaring the petitioner who is the accused person of the case concerned to be an absconder. Hence, it is submitted that this criminal miscellaneous petition being without any merit, be dismissed. 8. 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 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, Palamau 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 Judicial Magistrate-1st Class, Palamau has 4 Cr.M.P. No.3901 of 2022 committed gross 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 13.01.2010, passed in connection with Complaint Case No. 934 of 2007 be quashed and set aside. Accordingly, the order dated 13.01.2010 passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 is quashed and set aside. 9. So far as the order dated 05.08.2010 is concerned, it is a settled principle of law that the court issuing the 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, Palamau 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 05.08.2010 passed by the learned 5 Cr.M.P. No.3901 of 2022 Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 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 05.08.2010 passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 be quashed and set aside. 10. Accordingly, the order dated 05.08.2010 passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 is quashed and set aside. 11. So far as the order dated 16.09.2010 is concerned, it is a settled principle of law that before exercising the power under Section 299 of the Code of Criminal Procedure, it is necessary that all conditions prescribed must be strictly complied with namely the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as has been held by the Hon’ble Supreme Court of India in the case of Nirmal Singh vs. State of Haryana, reported in (2000) 4 SCC 41. 12. Now coming to the facts of the case, the perusal of the record reveals that there is absolutely no material in the record to suggest that the petitioner has absconded or that there is no immediate prospect of arresting him. In the absence of that, certainly the learned Judicial Magistrate -1st Class, Palamau has committed a grave illegality by declaring the petitioner to be an absconder and issuing permanent warrant of arrest. Hence, this 6 Cr.M.P. No.3901 of 2022 Court is of the considered view that the order dated 16.09.2010 passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 being not sustainable in law be quashed and set aside. 13. Accordingly, the order dated 16.09.2010 passed by the learned Judicial Magistrate -1st Class, Palamau in connection with Complaint Case No. 934 of 2007 is quashed and set aside. 14. The learned Judicial Magistrate-1st Class, Palamau or his successor court may pass a fresh order in accordance with law. 15. This criminal miscellaneous petition is allowed to the aforesaid extent only. 16. In the result, this criminal miscellaneous petition stands
Decision
disposed of. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st May, 2024 AFR/Sonu-Gunjan/- 7 Cr.M.P. No.3901 of 2022