Bermo at Tenughat v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4000 of 2019 1. Manir Ansari @ Manir Miya, s/o Pacchu Miya, aged about 40 years, r/o Kharpito, Argamo, P.O. & P.S.-Nawadih, Dist.-Bokaro 2. Mohammad Jibril Ansari @ Jivrail Ansari, s/o Najir Mian, aged about 38 years, r/o Village- Kharpito, P.O. & P.S.-Argamo, Dist.- Bokaro 3. Mohd Salim Ansari @ Md. Salim, s/o Usaman Ansari, aged about 42 years, r/o Kharpitto, P.O. & P.S.-Nawadih, Dist.-Bermo at Tenughat .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State : Mr. Sidhartha Roy, Advocate : Mr. Bhola Nath Ojha, Spl. P.P. ….. By the Court:- 1. 2. 3. Heard the parties. Though this criminal miscellaneous petition has been filed with several prayers but the petitioners does not press the prayer to quash the order dated 28.09.2018. Hence, the prayer to quash the order dated 28.09.2018 is rejected as not pressed. Learned counsel for the petitioners further submits that the petitioners confines their prayer in this criminal miscellaneous petition to quash the order dated 20.02.2019 by which non-bailable warrant of arrest was issued and order dated 31.07.2019 by which Cr.M.P. No.4000 of 2019 1 non-bailable warrant of arrest as well as proclamation under Section 82 Cr.P.C. has been issued in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012. 4. The brief fact of the case is that on 20.02.2019 the petitioners who are the accused persons of S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 were absent in court. The execution report of the bailable warrant of arrest issued earlier was not received but still the learned Additional Sessions Judge-I, Bermo at Tenughat issued the non- bailable warrant of arrest. On 31.07.2019 the petitioners who are the accused persons of the said case were absent and in a single sentence order, the learned Additional Sessions Judge-I, Bermo at Tenughat ordered for issuance of non-bailable warrant of arrest and proclamation under Section 82 Cr.P.C. 5. It is submitted by the learned counsel for the petitioners that since the learned Additional Sessions Judge-I, Bermo at Tenughat ordered for issuance of bailable warrant of arrest, it should have ensured that execution report of bailable warrant of arrest is received back before passing further orders for issue of the proclamation under section 82 of the Code of Criminal Procedure but having not done so, the learned Additional Sessions Judge-I, Bermo at Tenughat, has certainly committed an illegality by issuing non-bailable warrant of arrest, without receipt of the execution report of the bailable warrant of arrest, issued earlier in compliance of, the earlier order. It is next submitted by the learned counsel for the petitioners that proclamation under Section 82 of Cr.P.C. has been issued vide order Cr.M.P. No.4000 of 2019 2 dated 31.07.2019 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 that too without fixing any time or place for the appearance of the petitioners in respect of whom the proclamation under Section 82 Cr.P.C. has been issued. Hence, it is submitted that the said orders dated 20.02.2019 and 31.07.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 , being not sustainable in law, be quashed and set aside. 6. Learned Special Public Prosecutor on the other hand opposes the prayer for quashing the orders dated 20.02.2019 and 31.07.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 and submits that the very fact that the learned Additional Sessions Judge-I, Bermo at Tenughat has issued the non-bailable warrant of arrest and the proclamation under Section 82 of Cr.P.C. itself shows that there were materials available in the record for the learned Additional Sessions Judge-I, Bermo at Tenughat to be satisfied that there is justification for issuance of such non-bailable warrant of arrest and proclamation. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. Cr.M.P. No.4000 of 2019 3 7. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the order dated 20.02.2019 is concerned, it is crystal clear from the said order itself that the learned Additional Sessions Judge-I, Bermo at Tenughat without ensuring that the execution report of the bailable warrant of arrest issued against the petitioners who were the accused persons of the said case has ordered for issuance of non-bailable warrant of arrest against the petitioners-accused. It is needless to mention here that the said Additional Sessions Judge-I, Bermo at Tenughat having ordered for issuance of bailable warrant of arrest, it was incumbent upon the learned Additional Sessions Judge-I, Bermo at Tenughat to ensure execution of the said bailable warrant of arrest issued but certainly without the execution report of the bailable warrant of arrest, the learned Additional Sessions Judge-I, Bermo at Tenughat has committed a grave illegality by issuing the non-bailable warrant of arrest. Hence, the order dated 20.02.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 is not sustainable in law. Accordingly, the 20.02.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 is quashed and set aside. 8. So far as the order dated 31.07.2019 is concerned, 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 Cr.M.P. No.4000 of 2019 4 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 Additional Sessions Judge-I, Bermo at Tenughat 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, who is the accused persons of this case, this Court has no hesitation in holding that the learned Additional Sessions Judge-I, Bermo at Tenughat 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 and this is a fit case where the order dated 31.07.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012 be quashed and set aside. 9. Accordingly, the order dated 31.07.2019 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in connection with S.T. No. 113 of 2018 (S) arising out of Nawadih P.S. Case No. 42 of 2012, corresponding to G.R. No. 486 of 2012, is quashed and set aside. 10. The learned Additional Sessions Judge-I, Bermo at Tenughat may pass a fresh order in accordance with law. Cr.M.P. No.4000 of 2019 5 11.
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 30th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.4000 of 2019 6