The single judge bench of the Jharkhand High Court held that 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.
Brief facts
The factual matrix of the case is that the accused was absent and the court directed to issue a proclamation under Section 82 Cr.P.C. Then, the accused was again absent and the court directed to issue a process under Section 83 Cr.P.C. The present Criminal Miscellaneous Petition has been filed in order to quash the orders passed where the proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. respectively have been ordered to be issued by the learned Judicial Magistrate.
Contentions of the Petitioner
The Petitioner contended that the proclamation under Section 82 of the Criminal Procedure Code was issued without adhering to the due process of law, without documenting the satisfaction that the petitioner is absconding or hiding to avoid being arrested, which is a requirement for issuing a proclamation under that section, and without fixing a time or place for the accused persons. It was furthermore submitted that without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, the learned Judicial Magistrate passed the order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached.
Contentions of the State
The state contended that 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 to be satisfied that there is justification for issuance of such proclamation and attachment order of property.
Observations of the court
The Hon’ble Court observed that it is a settled principle of law that the court that issues the proclamation under Section 82 of the Cr.P.C. must record its satisfaction that the accused, regarding whom the proclamation is made, is absconding or hiding in order to avoid being arrested. If the court chooses to issue a proclamation under Section 82 of the Cr.P.C., it must specify the petitioner's appearance time and place in the order that issues the proclamation under Section 82 of the Cr.P.C.
It was furthermore observed that the court may order the attachment of any moveable or immovable property, or both, belonging to the proclaimed person at any time after issuing a proclamation under Section 82 of the Cr.P.C. for reasons that must be recorded in writing.
The court noted that 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 the appearance of the petitioner. In addition to this, the learned judicial magistrate passed the order of attachment of the 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 an order of attachment.
Based on these considerations, the court quashed and set aside the order passed.
The decision of the court
With the above direction, the court allowed the criminal miscellaneous Petition.
Case title: Rajesh Rajpal V. The State of Jharkhand
Coram: Hon’ble Mr. Justice Anil Kumar Choudhary
Case No: Cr.M.P. No.1219 of 2024
Advocate for the Petitioner: Mr. Pran Pranay, Advocate
Advocate for the State: Mrs. Vandana Bharti, Addl. P.P.
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