The High Court
Case Details
Cr. M.P. No.3558 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3558 of 2023 ------ 1. Prince Mandal, aged about 30 years, S/o Sri Narayan Chandra Mandal 2. Narayan Chandra Mandal, aged about 73 years, S/o Late Krishna Chandra Mandal 3. Banti Kumari @ Payal Kumari, aged about 32 years, D/o Sri Narayan Chandra Mandal 4. Rekha Mandal, aged about 62 years, W/o Sri Narayan Chandra Mandal 5. Vikash Kumar Mandal @ Vicky Mandal, aged about 39 years, S/o
Legal Reasoning
Sri Narayan Chandra Mandal All residents of Village –Chandil, P.O. and P.S. –Chandil, District – Seraikella, Kharsawan … Petitioners Versus The State of Jharkhand … Opposite Party For the Petitioners For the State ------ : Mr. P.P.N. Roy, Sr. Advocate : Mr. P.A.N. Roy, Advocate : Ms. Kavita Kumari, Advocate : Ms. Arti Roy, Advocate : Mrs. Shweta Singh, Addl. P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. The learned senior counsel for the petitioners submits that though several prayers have been made in this criminal miscellaneous petition but the petitioners abandon all other prayers and confine their prayer to quash the order dated 11.01.2017 by which proclamation under Section 82 Cr.P.C. has been issued and also the order dated 07.12.2017 by which the attachment order under Section 83 Cr.P.C. has been issued and both the orders were passed in G.R. Case No. 4876 of 2009. 1 Cr. M.P. No.3558 of 2023 3. The brief fact of the case is that on 11.01.2017, the petitioners who were the five accused persons of G.R. Case No. 4876 of 2009 were absent. The learned Judicial Magistrate passed an order for issuance of the proclamation under Section 82 Cr.P.C. without recording its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest and without fixing the time and place for the petitioners to appear. On 07.12.2017, without any material in the record to suggest that the proclamation made under Section 82 Cr.P.C. has been made, the Judicial Magistrate has passed order for attachment of property of the petitioners under Section 83 Cr.P.C. 4. It is submitted by the learned senior counsel for the petitioners that the proclamation under Section 82 Cr.P.C. has been issued vide order dated 11.01.2017 without following the due process of law and without recording the satisfaction that the petitioners are absconding or concealing themselves to evade their 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 the order for attachment of the property of the petitioners under Section 83 of Cr.P.C. vide order dated 07.12.2017 without mentioning the property to be attached. Hence, it is submitted that the orders dated 11.01.2017 and 07.12.2017, passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No. 4876 of 2009, now pending in the Court of learned Judicial Magistrate -1st Class, Ramgarh 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 11.01.2017 and 07.12.2017, passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No. 4876 2 Cr. M.P. No.3558 of 2023 of 2009, now pending in the Court of learned Judicial Magistrate -1st Class, Ramgarh and submits that the very fact that the learned Judicial Magistrate -1st Class, Ramgarh 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 Judicial Magistrate -1st Class to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this Cr.M.P., 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 of 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 of Cr.P.C. is issued. As already indicated above since the learned Judicial Magistrate -1st Class, Ramgarh has neither recorded its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest nor fixed any time or place for appearance of the petitioners, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Ramgarh 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, hence this is a fit case where the order dated 11.01.2017 3 Cr. M.P. No.3558 of 2023 be quashed and set aside. Accordingly, the order dated 11.01.2017, passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No. 4876 of 2009, now pending in the Court of learned Judicial Magistrate -1st Class, Ramgarh, is quashed and set aside. 7. So far as the order dated 07.12.2017 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, 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 Judicial Magistrate -1st Class, Ramgarh committed illegality by passing the order of attachment of property of the petitioners 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 07.12.2017 passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No.4876 of 2009 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 07.12.2017 passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No.4876 of 2009 pending in the court of learned Judicial Magistrate –1st Class, Ramgarh, be quashed and set aside. 8. Accordingly, the order dated 07.12.2017 passed by the learned Judicial Magistrate -1st Class, Ramgarh in G.R. Case No.4876 of 2009 pending in the court of learned Judicial Magistrate –1st Class, Ramgarh, is quashed and set aside. 4 Cr. M.P. No.3558 of 2023 9. The learned Judicial Magistrate -1st Class, Ramgarh may pass a fresh order in accordance with law. 10.
Decision
In the result, this criminal miscellaneous petition stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th of February, 2024 AFR/ Sonu-Gunjan/- 5