The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4263 of 2018 1. Sanjeev Kumar Burnwal @ Sanjeev Kumar Barnwal @ Tinku, aged about 35 years 2. Ravi Shankar Kumar @ Ravi Shankar, aged about 30 years 3. Shashi Bhushan Kumar @ Shashi Bhushan, aged about 27 years All sons of Ashok Kumar Burnwal @ Ashok Prasad 4. Ashok Kumar Burnwal @ Ashok Prasad, aged about 60 years, s/o late Gopal Lal 5. Neelam Devi, aged about 58 years, w/o Ashok Kumar Burnwal @ Ashok Prasad All are residents of Village-Telbigha, New Area, In front of Bawaji Tanga, Deputy Saheb Lane Gaya, P.O.-Gaya, P.S.-Kotwali, Dist.- Gaya (Bihar) .... Petitioners Versus 1. The State of Jharkhand 2. Kumari Anita @ Anita Devi, wife of Sanjeev Kumar Burnwal and D/o Dasrath Lal, r/o Chandak Campus, Jhumri Telaiya, Ward No.16, P.O.-Telaiya, P.S.-Telaiya, Dist.-Koderma …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. A.K. Sahani, Advocate : Mr. Vikesh Kumar, Advocate : Mr. P.D. Agrawal, Spl. P.P. : Mr. Ashok Kr. Sinha, Advocate ….. By the Court:- 1. 2. Heard the parties. Learned counsel for the petitioners submits that the petitioner no.4 does not press this criminal miscellaneous petition as he has no Cr.M.P. No.4263 of 2018 1 3. 4. 5. 6. 7. grievance in respect of the order sought to be quashed in this criminal miscellaneous petition. Accordingly, this criminal miscellaneous petition is dismissed as not pressed so far as the petitioner no.4-Ashok Kumar Burnwal @ Ashok Prasad is concerned. 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 10.10.2018 and 30.11.2018 passed by the learned Judicial Magistrate 1st Class, Koderma in connection with Complaint Case No. 325 of 2013. Learned counsel for the petitioner nos.1 to 3 and 5 at the outset submits that the petitioner nos.1 to 3 and 5 does not press the prayer to quash the order dated 10.10.2018 with liberty to appear and pray for regular bail before the trial court. Accordingly, the prayer to quash the order dated 10.10.2018 is rejected as not pressed with the aforesaid liberty. It is further submitted by the learned counsel for the petitioner nos.1 to 3 and 5 that the petitioner nos.1 to 3 and 5 confine their prayer to quash the order dated 30.11.2018 by which proclamation under Section 82 Cr.P.C. was issued against the petitioner nos. 1 to 3 and 5 who are the accused persons of the case. 8. The brief fact of the case is that on 30.11.2018 the petitioner no.4 was present before the trial court but rest of the four accused persons were absent. One petition was filed by the petitioner nos.1 to 3 and 5 for time. Learned Judicial Magistrate 1st Class, Koderma observed that execution report of the non-bailable warrant of arrest was issued against them and the same has not been received back but still the proclamation under Section 82 Cr.P.C, has been ordered to be issued. Cr.M.P. No.4263 of 2018 2 9. It is submitted by the learned counsel for the petitioner nos.1 to 3 and 5 that proclamation under Section 82 of Cr.P.C. has been issued vide order dated 30.11.2018 without following the due process of law and without recording the satisfaction that the petitioner nos.1 to 3 and 5 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 that too without mentioning the time and place for their appearance. Hence, it is submitted that order dated 30.11.2018 passed by the learned Judicial Magistrate 1st Class, Koderma in connection with Complaint Case No. 325 of 2013 be quashed and set aside. 10. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the order dated 30.11.2018 passed by the learned Judicial Magistrate 1st Class, Koderma in connection with Complaint Case No. 325 of 2013 and submits that the very fact that the learned Judicial Magistrate 1st Class, Koderma has issued the proclamation under Section 82 of Cr.P.C. itself shows that there were materials available in the record for the learned Judicial Magistrate 1st Class, Koderma to be satisfied that there is justification for issuance of such proclamation. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials 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 Cr.M.P. No.4263 of 2018 3 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 accused persons in respect of whom such proclamation is issued; in the order itself by which the proclamation under Section 82 of Cr.P.C. is ordered to be issued. As already indicated above since the learned Judicial Magistrate 1st Class, Koderma has neither recorded its satisfaction that the petitioner nos.1 to 3 and 5 are absconding or concealing themselves to evade their arrest nor fixed any time or place for appearance of the petitioner nos.1 to 3 and 5 who are the accused persons of this case, this Court has no hesitation in holding that the learned Judicial Magistrate 1st Class, Koderma 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 30.11.2018 passed by the learned Judicial Magistrate 1st Class, Koderma in connection with Complaint Case No. 325 of 2013 be quashed and set aside qua the petitioner nos.1 to 3 and 5. 12. Accordingly, the order dated 30.11.2018 passed by the learned Judicial Magistrate 1st Class, Koderma in connection with Complaint Case No. 325 of 2013, is quashed and set aside qua the petitioner nos.1 to 3 and 5. 13. 14. The learned Judicial Magistrate 1st Class, Koderma may pass a fresh order in accordance with law.
Decision
In the result, this criminal miscellaneous petition is allowed. Cr.M.P. No.4263 of 2018 4 15. 16. In view of the disposal of this criminal miscellaneous petition, Interlocutory Application No. 4096 of 2021 is disposed of being infructuous. The interim order passed earlier vide order dated 23.09.2019 is vacated. High Court of Jharkhand, Ranchi Dated the 3rd September, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.4263 of 2018 5