Jharkhand High Court
Gobardhan Sahani @ Goverdhan ... vs The State Of Jharkhand on 7 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.591 of 2021
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Gobardhan Sahani @ Goverdhan Sahani, aged about 24 years son of
Chuttu Sahani, resident of Jogitopa, P.O. and P.S. Nirsa, District Dhanbad
.... .... .... Petitioner
Versus
The State of Jharkhand .... .... .... Opposite Party
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. Rajendra Ram Ravi Das, A.P.P.
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03/07.04.2021 Heard Mr. R.S. Mazumdar, learned senior counsel for the petitioner
and Mr. Rajendra Ram Ravi Das, learned counsel for the State.
This criminal miscellaneous petition has been heard through Video
Conferencing in view of the guidelines of the High Court taking into account
the situation arising due to COVID-19 pandemic.
The petitioner has challenged the order dated 18.01.2021 whereby
proclamation under Section 82 of Cr.P.C. has been issued against the
petitioner.
Mr. Mazumdar, learned senior counsel appearing for the petitioner
at the outset draws the attention of this Court towards the impugned order
dated 18.01.2021 and submits that although the order is longer one but the
parameters prescribed by this Court in the case of Md. Rustum Alam @
Rustam & Others Versus The State of Jharkhand reported in 2020(2)
JLJR 712 has not been followed. In para 22 and 23 of the judgment it is
prescribed that Form IV is requirement which needs to be reflected in the
order sheet which has not been done. For reference para 22 and 23 of the
aforesaid judgment is quoted hereinbelow:
22. Further, sub-section (1) of Section 82 of the Code provides that the
Court has to publish the written proclamation requiring the person to
appear on a specified date and specified place not less than 30 days
from the date of such publication. Thus, it is the duty of the Court to
mention the specific place and the date where the person needs to
present himself in compliance of the proclamation order. This date and
place should be mentioned in the order itself.
23. Form IV, which is part of Second Schedule of Code is the form in
which proclamation is required to be issued. The said form provides for
mentioning the place and date, for the person to appear in compliance of
the order. This is a statutory form. This form is filled by the Office of the
Court. Thus, the date and place, which is mentioned in the said form
must also be reflected in the ordersheet. This will mean that the Court
has fixed the place, time and the date and not the Bench Clerks or the
Office Clerks, as it is the mandate of the law that the Court has to fix the
place, time and the date of appearance. The Form IV, which is a
statutory form, must be scrupulously followed and filled up as per the
date, time, place fixed by the Court, which should be reflected in the
ordersheet.
24. The Supreme Court, in the context of service of summons under
the Civil Procedure Code, 1908, in the case of Auto Cars versus Trimurti
Cargo Movers Pvt. Ltd. & Ors. reported in (2018) 15 SCC 166, held that
any non-compliance with the statutory requirements regarding
mentioning of the specific "day, date, year and time" would amount to
material infirmity rendering summons as well as their service bad in law
and consequently cannot be held to be duly served.
The Supreme Court, while taking note of the statutory form as
mentioned in the Appendix-B to the Code of Civil Procedure, as also the
provisions of Section 27 and Order 5 of the Code of Civil Procedure, held
that the requirements specified in law by the statute are not an empty
formality. The Supreme Court, while interpreting the provisions of the
Code of Civil Procedure, held that the provisions relating to service of
summons are mandatory in nature and relied upon a well settled
principle of interpretation that when the legislature provides a particular
thing to be done in a particular manner, then such thing has to be done
in the same prescribed manner and in no other manner.
On perusal of order dated 18.01.2021, it transpires that para 22 and
23 of the judgment has not been followed although order is longer one but
Form IV which is statutory Form, has not been reflected in the order sheet.
In that view of the matter, the impugned order dated 18.01.2021
passed in connection with Nirsa P.S. Case No.369 of 2020 corresponding to
Special POCSO Case No.158 of 2020 pending in the Court of District and
Additional Session Judge-IX-cum Special Judge, POCSO, Dhanbad, is
quashed. The matter is remitted to the Court below to proceed afresh
strictly in the light of Code of Criminal Procedure and the guidelines
prescribed in the case of Md. Rustum Alam @ Rustam (supra).
(Sanjay Kumar Dwivedi, J.)
Anit
