Jharkhand High Court
Surya Narayan Hansda @ Surya ... vs The State Of Jharkhand on 4 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 56 of 2021
----
Surya Narayan Hansda @ Surya Hansda ... Petitioner
-versus-
The State of Jharkhand ... Opposite Party
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
----
For the Petitioner : Mr. Ranjan Kumar Singh, Advocate
For the State: Mr. Ashok Kumar, A.P.P.
----
5/ 04.03.2021 Heard learned counsel for the petitioner and the learned counsel
appearing for the State through Video Conferencing. The lawyers have no
objection with regard to the proceeding which has been held through video
conferencing today at 11.00 a.m.. They have no complaint with respect to the
audio and video clarity and quality.
2. In this criminal miscellaneous petition, the petitioner has
challenged the order dated 07.12.2020, passed in Misc. Cr. Application
No.543 of 2020 by the Additional Sessions Judge II, Godda whereby the
application of the petitioner was dismissed.
3. Counsel for the petitioner submits that by filing an application
before the Court below, the petitioner had challenged the order dated
28.09.2020, by which processes under Section 82 of the Code of Criminal
Procedure was issued. He submits that issuing processes under Section 82 of
the Code of Criminal Procedure is absolutely bad and against the provisions of
law. He preferred the Misc. Cr. Appl. No.543 of 2020 before the Sessions
Judge challenging the said order. The Additional Sessions Judge II, Godda on
07.12.2020 dismissed the said Misc. Cr. Appl. No.543 of 2020 mechanically.
He further submits that the order is unreasoned and non speaking. He further
submits that the Sessions Court even did not follow the law laid down by this
Court in the case of Md. Rustum Alam @ Rustam & Others versus State of
Jharkhand as reported in 2020 (2) JLJR 712 and in utter disregard of the
order passed by this Court, has passed the impugned order.
4. I have heard counsel for the petitioner and the State and have
gone through the records and the ordersheets.
5. An application was filed by the investigating officer praying therein
to issue processes under Section 82 of the Code of Criminal Procedure
against the petitioner. Said application was allowed on 28.09.2020. The
Judicial Magistrate recorded the fact submitted by the prosecution that the
police raided the house of the petitioner on 3 occasions, i.e., 16.09.2020,
20.09.2020 and 23.09.2020 and reached at a conclusion that the petitioner is
evading his arrest and has absconded and accordingly, returned the warrant.
The Magistrate, after recording the said fact, had directed the office to issue
process of Section 82 Cr.P.C. Whether and how the Court was satisfied or not
on the aforesaid plea of the investigating officer has not been mentioned. The
satisfaction even was not recorded in the order. The Judicial Magistrate
recorded the submission of the investigating officer and thereafter directed the
office to issue processes. Further, neither any date or time in terms of Section
82 of the Code of Criminal Procedure has been mentioned in the impugned
order. A Misc. Cri. Appl. No.543 of 2020 was filed by the petitioner before the
Court of Sessions Judge, which was heard by the Additional Sessions Judge
II, Godda. The Additional Sessions Judge II, Godda, vide order dated
07.12.2020 dismissed the said application.
6. I have gone through the aforesaid order passed by the Additional
Sessions Judge II, Godda. After recording some facts, the operative portion of
the order and the findings read as follows: -
"The petitioner has prayed to set aside
this proclamation u/s 82 of Cr.P.C. on technical
grounds that it does not contain the date, time
and place for the appearance of the petitioner.
In my opinion, such type of petition as
Misc. Cr. Appl. is not maintainable, hence it is
hereby dismissed accordingly."
7. Form IV of Schedule II of the Code of Criminal Procedure issued
pursuant to the order dated 28.09.2020 has also been brought before me.
When I go through the Form IV, I find that the place, date and time when the
petitioner has to appear has been kept blank. This is a major illegality
committed by the Court of the Judicial Magistrate. Putting a date for
appearance in Form IV and in the ordersheet is a mandatory provision and the
Court cannot brush aside the same terming it to be technical one. The
Additional Sessions Judge considered the same to be a technical ground.
Even if the same is technical ground, it is enough to quash the processes
under Section 82 of the Code of Criminal Procedure. The statute provides for
giving date and time in Form IV, which is a statutory document. Section 82
read with Form IV is the procedure and it is settled law that when a procedure
is prescribed in the law, the same has to be followed. When a law provides
that a particular act has to be done in a particular manner, then the same has
to be done in the same particular manner and the said procedure cannot be
given a go bye. This basic principle has been deviated while passing the
impugned order by the Magistrate and surprisingly, the Additional Sessions
Judge also misdirected himself while passing the impugned order. Further, the
Additional Sessions Judge has opined that such type of petition as Misc. Cri.
Appl. is not maintainable. The reasons for holding the same as not
maintainable has not been mentioned in the impugned order. May be an
application is not maintainable, but, when the Court holds that the same is not
maintainable, the reasons for holding such, must be mentioned in the order.
The order passed by the Additional Sessions Judge II, Godda is absolutely
unreasoned, non-speaking and unsustainable in the eyes of law.
8. This Court, in the case of Md. Rustum Alam @ Rustam &
Others versus State of Jharkhand as reported in 2020 (2) JLJR 712, has
already dealt in detail about this issue. The said order was circulated to all the
Judicial Officers of the State much prior to passing of both the impugned
orders, i.e., the orders passed by the Judicial Magistrate and the Additional
Sessions Judge. Both the Courts have passed their respective orders ignoring
the orders of this Court. This is most unfortunate and is improper. A judgment
of the higher Court is always binding upon the Subordinate Court, which must
be followed. Both the Judicial Magistrate and the Additional Session Judge
should be cautious in future.
9. Further, in view of what has been held above and in view of the
order passed in the case of Md. Rustum Alam @ Rustam & Others versus
State of Jharkhand as reported in 2020 (2) JLJR 712, by exercising
jurisdiction under Section 482 of the Code of Criminal Procedure, I am inclined
to set aside the order dated 28.09.2020 passed by the Judicial Magistrate 1st
Class, Godda in Thakurgangti Police Station Case No.09 of 2020 (G.R.
No.352 of 2020) by which processes under Section 82 of the Code of Criminal
Procedure has been issued. The order dated 07.12.2020 passed by the
Additional Sessions Judge II, Godda in Misc. Cri. Appl. No.543 of 2020 is also
hereby set aside. The matter is remanded to the Judicial Magistrate First
Class, Godda to pass a fresh order in accordance with law and in terms of the
order passed by this Court in Md. Rustum Alam @ Rustam & Others versus
State of Jharkhand as reported in 2020 (2) JLJR 712.
10. This criminal miscellaneous petition is, accordingly, allowed.
11. Let a copy of this order be communicated to the Judicial
Magistrate 1st Class, Godda and the Additional Sessions Judge II, Godda
through the Registrar General and the Principal District & Sessions Judge,
Godda immediately through FAX.
12. Registrar General is also directed to place a copy of this order on
the administrative side before the Hon'ble Zonal Judge of Godda Judgeship.
(Ananda Sen, J.)
Kumar/Cp-03
