Dinesh Kumar v. The State of Jharkhand

The brief facts of the case is that the petitioner is an accused of the said case in which charge sheet has been submitted alleging commission of the offences punishable under Section 414 of the Indian Penal Code, under Section 30 of the Coal Mines (Nationalization) Act and under Section 33 of the Indian Forest Act. Upon submission of charge sheet vide order dated 19.01.2009 summons were ordered to be issued to the accused persons of the 1 Cr.M.P. No.4647 of 2022 case including the petitioner. Summon has never been served upon the petitioner. Bailable warrant of arrest was issued against the petitioner vide order dated 04.06.2010 and even though the execution report of the bailable warrant of arrest was not received, still vide order dated 24.09.2010, non-bailable warrant of arrest was issued. On 21.01.2011 without recording any satisfaction that the petitioner is absconding or concealing and without fixing any date and time for appearance of the petitioner, proclamation under Section 82 Cr.P.C. was issued and without report that the proclamation has been made, vide order dated 16.03.2011 and subsequently on 08.09.2017, twice the attachment order of the property of the petitioner was issued and ultimately vide order dated 18.06.2022, the petitioner was declared permanent absconder by the learned Judicial Magistrate -1st Class, Ramgarh and after splitting of the record in respect of the petitioner, the same was directed to be transmitted to the District Record Room vide order dated 18.06.2022. The petitioner has challenged the orders dated 24.09.2010, 21.01.2011, 16.03.2011, 08.09.2017 and

18.06.2022.

#4. The learned counsel for the petitioner submits that the learned Magistrate committed a grave illegality by issuing the non-bailable warrant of arrest vide order dated 24.09.2010 though summon was never served upon the petitioner nor the execution report of bailable warrant issued against him was received. It is then submitted that vide order dated 21.01.2011, the proclamation 2 Cr.M.P. No.4647 of 2022 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. that too without mentioning any time and place for appearance of the petitioner. Hence, it is submitted that the said order dated 21.01.2011 being not in accordance with law be quashed and set aside. It is then submitted by the learned counsel for the petitioner that the learned Judicial Magistrate vide its order dated 16.03.2011 and 08.09.2017 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 the necessity for issuing the attachment order and without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made. Hence, it is submitted that the order dated 16.03.2011 and 08.09.2017 being not in accordance with law are also not sustainable in law, hence 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

18.06.2022 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, 3 Cr.M.P. No.4647 of 2022 the learned Judicial Magistrate committed a grave illegality in declaring him absconder and issuing permanent warrant of arrest. Hence, it is submitted that the order dated 18.06.2022 being not sustainable in law, the same be also quashed and set aside.

#5. The learned Spl. P.P. on the other hand opposes the prayer to quash the said five orders already mentioned in the foregoing paragraphs of this Judgment and submits that the very fact that the learned Judicial Magistrate has issued the non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C., the orders of attachment under Section 83 of Cr.P.C. and the order declaring 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 non-bailable warrant of arrest, 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.

#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 since the learned Magistrate vide order dated 19.01.2009 directed issue of summons to the petitioner so without the service report of the summons issued and subsequently without the execution report of the bailable warrant of arrest having been received back in record has 4 Cr.M.P. No.4647 of 2022 committed a grave illegality by passing order for issue of the non- bailable warrant of arrest. Accordingly, the order dated 24.09.2010 is not sustainable in law; hence the same is quashed and set aside.

#7. So far as the order dated 21.01.2011 is concerned, 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 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 has 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 21.01.2011 be quashed and set aside and continuation of the same will amount to abuse of process of Court. Accordingly, the order dated 21.01.2011 passed by the learned Judicial Magistrate -1st Class, Hazaribagh in 5 Cr.M.P. No.4647 of 2022 connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 is quashed and set aside.

#8. So far as the orders dated 16.03.2011 and 08.09.2017 passed respectively by the learned Judicial Magistrate -1st Class, Hazaribagh and the learned A.C.J.M., Ramgarh are 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 the 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 A.C.J.M., Ramgarh has committed gross 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 orders of attachment of the property of the petitioner dated

16.03.2011 and 08.09.2017 passed respectively by the learned Judicial Magistrate -1st Class, Hazaribagh and the learned A.C.J.M., Ramgarh in connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 are also not in accordance with law and continuation of the same will 6 Cr.M.P. No.4647 of 2022 amount to abuse of process of law and this is a fit case where the orders dated 16.03.2011 and 08.09.2017 passed respectively by the learned Judicial Magistrate -1st Class, Hazaribagh and the learned A.C.J.M., Ramgarh in connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 be quashed and set aside. Accordingly, the orders dated 16.03.2011 and 08.09.2017 passed respectively by the learned Judicial Magistrate -1st Class, Hazaribagh and the learned A.C.J.M., Ramgarh in connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 are quashed and set aside.

#9. So far as the order dated 18.06.2022 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.

#10. 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, Ramgarh has committed a grave illegality by declaring the petitioner to be an 7 Cr.M.P. No.4647 of 2022 absconder and issuing permanent warrant of arrest. Hence, this Court is of the considered view that the order dated 18.06.2022 passed by the learned Judicial Magistrate -1st Class, Ramgarh in connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 being not sustainable in law be quashed and set aside. Accordingly, the order dated

18.06.2022 passed by the learned Judicial Magistrate -1st Class, Ramgarh in connection with Manju (Kuju) P.S. Case No. 223 of 2006, corresponding to G.R. Case No. 2001 of 2006 is quashed and set aside.

#11. The learned Judicial Magistrate-1st Class, Ramgarh or its successor court may pass fresh order in accordance with law.

#12. This criminal miscellaneous petition is allowed to the aforesaid extent only.

#13. In the result, this criminal miscellaneous petition stands disposed of. High Court of Jharkhand, Ranchi Dated the 21st June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 8 Cr.M.P. No.4647 of 2022