Prakash Chandra Yadav @ Mungeri ... vs The State Of Jharkhand
2021 Latest Caselaw 3813 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 2185 of 2021
             1.   Prakash Chandra Yadav @ Mungeri Yadav, aged about 60 years, son
                  of Late Anandi Yadav, resident of Refugee Colony, P.O.- Sahibganj, P.S.
                  Jirwabari (OP), District- Sahibganj
             2.   Ankush Yadav @ Ankush Rajhans, aged about 28 years, son of
                  Prakash Chandra Yadav, Resident of 12 Near Railway Station, Netaji
                  Subhash Colony, P.O. Sahibganj, P.S. Jirwabari (OP), District-
                  Sahibganj                                       ... Petitioners

                                         -Versus-

                  The State of Jharkhand                           ... Opposite Party
                                            -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

For the Petitioners : Mr. R.S. Mazumdar, Sr. Advocate For the Opposite Party-State : Mr. P.C. Sinha, A.C. to G.A.-III

-----

02/06.10.2021. Heard Mr. R.S. Mazumdar, learned Senior counsel for the petitioners

and Mr. P.C. Sinha, learned counsel for the opposite party-State.

2. This criminal miscellaneous petition has been taken 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 on merit.

3. This petition has been filed for quashing the order dated 01.06.2021

passed by the learned Chief Judicial Magistrate, Sahibganj in connection

with Mufassil (Sahibganj) P.S. Case No.62 of 2021, whereby, non-bailable

warrant of arrest has been directed to be issued against the petitioners.

4. The prosecution case in brief is that one Durgesh Yadav, who is

allegedly booking Clerk at Samda Ferry Ghat, lodged First Information

Report against the petitioners and others on 30.04.2021 at about 02:00

p.m., the petitioners and some others reached at Samda Ghat with country

made pistol in their hand and threatened the informant to pay Rs.1,000/-

per truck to them as Rangdari and they also asked the informant to stop the

plying of vessel if Rangdari money is not paid. The accused petitioners also

threatened the informant to throw him in river Ganga if he will disobey their

command and, therefore, the present case has been lodged.

5. Mr. R.S. Mazumdar, learned Senior counsel appearing for the

petitioners submits that there is no finding of the concerned court that the

petitioners were evading arrest. He refers Section 73 Cr.P.C. and submits

that mandatory provision has not been complied with. He relied upon the

judgment rendered by this Court in the case of Md. Rustum Alam @

Rustam and Others v. The State of Jharkhand , reported in 2020 (2)

JLJR 712.

6. Paragraph 11 of the said judgment is quoted herein below:

"11. From a reading of the aforesaid provision of law, I find that a Magistrate has jurisdiction and power to issue warrant of arrest, which can be directed against any escaped convict, proclaimed offender, against any person who is an accused of a non-bailable offence and is evading arrest. Thus, person against whom warrant of arrest can be issued, must fall in either of the aforesaid three categories. Admittedly, in the case in hand, when warrant of arrest was issued, these petitioners were neither an escaped convict nor a proclaimed offender. They can, at best, fall in the third category, i.e., "an accused of a non-bailable offence and is evading arrest". So, it can be presumed that Court has issued warrant on the ground that the petitioners are accused of non-bailable offence. Only being an accused of a non-bailable offence is not a ground to issue warrant of arrest, as per the provisions of Section 73 of the Code. The said accused, who is wanted in a case involving a non-bailable offence, must also be evading his arrest. The word 'and' used in Section 73(1) of the Code is a conjunctive clause. Thus, both the conditions should simultaneously exist to enable the Court to issue warrant of arrest. This position of law should have been considered by the Court while issuing a warrant of arrest. This means that a person not only should be an accused of an offence, non-bailable in nature, but also should be found evading his arrest. There is nothing in the impugned orders to suggest that the petitioners were evading arrest."

7. Mr. P.C. Sinha, learned counsel appearing for the State submits that

there is no illegality in the impugned order. He has not been able to

distinguish the judgment relied by Mr. Mazumdar, learned Senior counsel for

the petitioners.

8. In view of the above facts and considering that there is no finding

that the petitioners were evading arrest and the matter is fully covered in

light of the judgment reported in the case of Md. Rustum Alam @ Rustam

(supra), the order dated 01.06.2021 passed by the learned Chief Judicial

Magistrate, Sahibganj in connection with Mufassil (Sahibganj) P.S. Case

No.62 of 2021 is quashed.

9. Accordingly, this criminal miscellaneous petition stands allowed and

disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/