Jharkhand High Court
Md. Fakher Alam @ Fakhre Alam vs The State Of Jharkhand on 22 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2617 of 2020
------
Md. Fakher Alam @ Fakhre Alam, aged about 42 years son of Abdul
Karim @ Abdul Karim, resident of Bakar Ali Road, Khirgaon, P.S. Sadar,
P.O. and District-Hazaribag ... .... .... Petitioner
Versus
The State of Jharkhand ... .... Opposite Party
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Shailendra Jit, Advocate
For the State : Mr. Saket Kumar, A.P.P.
05/22.03.2021 Heard Mr. Shailendra Jit, learned counsel for the petitioner and Mr.
Saket Kumar, learned counsel for the State.
This 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. None of the parties have complained about any technical
snag of audio-video and with their consent this matter has been heard.
The present petition has been filed for quashing of orders dated
28.08.2012/21.11.2013 whereby non-bailable warrant of arrest was directed to
be issued against the petitioner. Prayer has also been made for quashing of
orders dated 06.01.2015 and 28.04.2015 whereby process under sections 82
and 83 Cr.P.C. respectively have been directed to be issued against the
petitioner. Further prayer has been made for quashing of order dated
25.06.2018 by which the petitioner has been declared absconder.
Mr. Shaildendra Jit, learned counsel for the petitioner submits that
without following the due process of law, process under sections 82/83 Cr.P.C.
has been issued against the petitioner. He submits that although execution
report was called by the learned Magistrate but the same has not been received
neither report has been submitted by the police department and inspite of that
the impugned orders have been passed. He submits that the case is under
section 138 of Negotiable of Instrument Act and the petitioner is willing to
appear and compromise the matter but in view of issuance of process under
section 82/83 Cr.P.C., petitioner has been compelled to move before this Court.
Mr. Saket Kumar, learned counsel for the State submits that execution
report is not there and in view of law laid down in various judgments of this
Court, the impugned orders have been wrongly passed.
On perusal of order dated 25.06.2018, it transpires that the learned
Magistrate has directed to issue process under section 82/83 Cr.P.C. recording
that execution reports were called from the police department but he has not
stated about the execution of the said report of service of non-bailable warrant
against the petitioner. The order dated 25.04.2018 and 25.05.2018 passed in
the said case was also on the same line whereby execution report was called
but the execution report is not on record neither any report has been submitted
by the police department.
In view of the above facts and considering that without service of
execution report, impugned orders have been passed and process of 82/83
Cr.P.C. has been issued, impugned orders dated 28.08.2012/21.11.2013,
06.01.2015, 28.04.2015 and 25.06.2018 are quashed. The matter is remitted
back to the court below to proceed strictly in accordance with Code of Criminal
Procedure and in terms of judgment passed by this Court in the case of Md.
Rustam Alam @ Rustam & Ors. V. The State of Jharkhand, reported in
2020 (2) JLJR 712.
The petitioner is set at liberty to appear in the Court below on
07.04.2021 and on his appearance, the learned Magistrate will take decision on
its own merit without being prejudiced by the discussions made above.
With the above observation and direction, this criminal miscellaneous
petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/-
