Kaleshwar Hembrom, aged about 28 years, S/o Late Rajan Hembrom, R/o Village Ganesh Pur v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3685 of 2023 Kaleshwar Hembrom, aged about 28 years, S/o Late Rajan Hembrom, R/o Village Ganesh Pur, P.O.- Shahargram, P.S.- Maheshpur, Dist.- Pakur, Jharkhand Versus …... Petitioner The State of Jharkhand ..... Opposite Party For the Petitioners For the State : Mr. S.Roy,Adv. : Mr. Shailesh Kr. Sinha, Addl.PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of CrPC with a prayer for quashing the orders dated 24.07.2019, 02.12.2020 and 23.09.2021 whereby and where under Non bailable warrant of arrest, proclamation under Section 82 and process under Section 83 of CrPC respectively has been issued against the petitioner by learned CJM, Pakur in connection with Maheshpur P.S. Case no. 25 of 2019 corresponding to G.R. case no. 571 of 2021 registered for the offence punishable under Section 376, 452 of IPC. 3. The brief facts of the case is that on 24.07.2019, the I.O. filed a petition with the prayer for issue of warrant of arrest and the court without recording any satisfaction, that the petitioner who is the accused person of the case, is evading his arrest, issued the non-bailable warrant of arrest. On 02.12.2020, a prayer was made by the I.O. of the case for issuing proclamation, but learned Judicial Magistrate, without fixing time and place for appearance of the petitioner, issued the proclamation under Section 82 of CrPC. On 23.09.2021, without making any mention that the proclamation under Section 82 of 1 Cr.M.P. No. 3685 of 2023 CrPC has ever been made, learned CJM, Pakur passed the order for attachment of the property of the informant without recording any satisfaction that the process under Section 82 of CrPC was made and without mentioning the description of the property to be attached.
Legal Reasoning
4. It is submitted by learned counsel for the petitioner by drawing attention of the court to Section 73 of the CrPC that Section 73 vests the power inter alia upon the Chief Judicial Magistrate, to direct warrant to any person, within his local jurisdiction for arrest inter alia, if a person, who is accused of a non-bailable offence and he is evading his arrest. It is next submitted by learned counsel for the petitioner that learned Magistrate has directed for non-bailable warrant of arrest to the petitioner without recording any satisfaction that the petitioner is evading his arrest, hence, the order dated 24.07.2019 is not sustainable in law. 5. So far as the order dated 02.12.2020 is concerned, it is submitted by learned counsel for the petitioner that the proclamation under Section 82 of Cr.P.C. has been issued 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. and without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, vide order dated 23.09.2021, learned Chief Judicial Magistrate has passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the order dated 23.09.2021 is also not sustainable in law, therefore, the same be quashed and set aside. 6. Learned Addl. PP on the other hand vehemently opposes the prayer for quashing the orders dated 24.07.2019, 02.12.2020 and 23.09.2021 and submits that the very fact that the learned Chief Judicial Magistrate has issued the non-bailable warrant of 2 Cr.M.P. No. 3685 of 2023 arrest, 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 Chief Judicial Magistrate to be satisfied that there is justification for issuance of such proclamation and proceeding. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the 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 inter alia the Chief Judicial Magistrate, may direct a warrant of arrest to any person, within his local jurisdiction for arrest, if the person is accused of non-bailable offence and is evading his arrest. Now coming to the facts of the case, there is absolutely no material in the record to suggest that the petitioner who is the accused person of the case, is evading his arrest and further, though, it has not been specifically mentioned that materials in the record suggests that the petitioner was accused of an offence punishable under Section 376 of IPC which is non-bailable offence but as learned CJM, has not recorded any satisfaction that the petitioner who is an accused person of the case, is evading his arrest, hence, this court is of the considered view that the said order dated 24.07.2019 is not sustainable in law and the same is liable to be quashed and set aside. 8. Accordingly, the order dated 24.07.2019 passed in connection with Mahespur P.S. Case no. 25 of 2019 corresponding to G.R. No. 571 of 2021 is quashed and set aside. 9. So far as the order dated 02.12.2020 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 proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case 3 Cr.M.P. No. 3685 of 2023 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 Chief Judicial Magistrate, Pakur has not fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Pakur 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 02.12.2020 be quashed and set aside. 10. Accordingly, the order dated 02.12.2020 passed in connection with Mahespur P.S. Case no. 25 of 2019 corresponding to G.R. No. 571 of 2021 is quashed and set aside. 11. So far as the order dated 23.09.2021 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of CrPC, 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 Chief Judicial Magistrate, Pakur committed grave 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 23.09.2021 passed by the learned Chief Judicial Magistrate, Pakur in connection with Maheshpur P.S. Case no. 25 of 2019 corresponding to G.R. case no. 571 of 2021 is also not in accordance with law and continuation of the 4 Cr.M.P. No. 3685 of 2023 same will amount to abuse of process of law. Therefore this is a fit case where the order dated 23.09.2021 passed by the learned Chief Judicial Magistrate, Pakur be quashed and set aside. 12. Accordingly, the order dated 23.09.2021 passed by the learned Chief Judicial Magistrate, Pakur in connection with Maheshpur P.S. Case no. 25 of 2019 corresponding to G.R. case no. 571 of 2021 is quashed and set aside. 13. The Chief Judicial Magistrate, Pakur may pass fresh order in accordance with law.
Decision
14. In the result, this criminal miscellaneous petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 19th June, 2024 Smita /AFR 5 Cr.M.P. No. 3685 of 2023