Abhay Kumar Singh vs The State Of Jharkhand
2021 Latest Caselaw 3936 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No. 528 of 2020

Abhay Kumar Singh, aged about 35 years, son of Sri Shanker Dayal Singh,
resident of Flat No. 9B, Tower 2, Assets Home, Manamkulam, P.O.
Manamkulam, P.S. Kazhakkootam, Town and District Trivandrum, State
Kerala
                                                   ...... Petitioner
                        Versus
                       ...............

1.The State of Jharkhand

2.Dipanjali Kumari Singh, wife of Abhay Kumar Singh, daughter of Kauslesh Kumar Sinha, resident of Prabhat Bhawan, South Shivpuri, P.O. and P.S. Hazaribagh, Town and District-Hazaribagh ...... Opposite Parties

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Jai Prakash, Sr. Advocate For the State : Mr. Someshwar Rai, A.P.P.

For the O.P. No. 2 : Mr. P.P.N. Roy, Sr. Advocate

7/Dated: 21/10/2021 Heard Mr. Jai Prakash, learned senior counsel for the petitioner,

Mr. Someshwar Rai, learned counsel for the State and Mr. P.P.N. Rai, learned

senior counsel for the O.P. No. 2.

2. The present petition has been filed for quashing of order

dated 27.01.2020 passed in Lohsinghna P.S. Case No. 67 of 2019 whereby

process under section 82 Cr.P.C. has been issued against the petitioner.

3. During pendency of this petition, I.A. No. 2927 of 2020 has

been filed for challenging order dated 23.10.2019 whereby non-bailable

warrant of arrest has been issued against the petitioner and the said I.A.

was allowed vide order dated 13.09.2021. Thus, orders dated 23.10.2019

and 27.01.2020 are subject matter of this petition.

4. Mr. Jai Prakash, learned senior counsel for the petitioner submits

that the case arises of section 498-A I.P.C. and other sections along with

section 3/4 of the D.P. Act. He submits that vide order dated 23.10.2019

non-bailable warrant of arrest has been issued against the petitioner. He

further submits that the petitioner was co-operating with the Investigating

Officer and also responded through email and on telephone. He submits that

one of receipt of email is annexed with Annexure-4 to the petiton. He refers

to para 4 and 8 of the supplementary affidavit and submits that it has been

disclosed that how notice under section 41-A Cr.P.C. has been communicated

to the petitioner and how the petitioner has responded the said notice. He

draws the attention of the Court to joining report of the Vikram Sarabhai,

Space Research Centre, ISRO at Trivendrum and submits that the petitioner

was on earned leave from 25.11.2019 to 05.02.2020. He further draws the

attention of the Court to Annexure-5 to the supplementary affidavit, which is

rent agreement between the petitioner and the landlord and submits that

after expiry of this agreement, the petitioner has vacated the house.

According to him, the petitioner is scientist and he was not evading his

arrest rather he is ready to co-operate with the investigation. He further

submits that in the light of section 73 Cr.P.C. three criteria are required to

be looked into. To buttress his argument, learned counsel for the petitioner

relied on judgment in the case of "Md. Rustum Alam @ Rustam & Ors. Vs.

The State of Jharkhand, reported in 2020 (2) JLJR 712 wherein para 11 and

13 it has been held as under:-

"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.

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13. If liberty of a person is to be curtailed, the same has to be done strictly in accordance with law so provided for. In this case, it is being curtailed by issuance of non-bailable warrant of arrest. Thus, the Court has to record his satisfaction that th conditions laid down in the law for issuing warrant of arrest has been fulfilled and the procedure has been complied with. This satisfaction of the Court should be reflected in the order itself, to be gathered from the record, then only warrant f arrest can be issued. The Court has to prima facie be satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the materials placed before the Court, warrant of arrest cannot be issued. This satisfaction can be derived from the police paper/case diary. Mere absence of the accused cannot give rise to a presumption that he is evading arrest, which in turn cannot be the sole ground to issue warrant of arrest."

5. On these grounds, learned senior counsel for the petitioner

submits that since order dated 23.10.2019 by which N.B.W. has been

issued, is bad in law then subsequent order dated 27.01.2020 by which

process under section 82 Cr.P.C. was directed to be issued against the

petitioner, is not surviving.

6. Mr. P.P.N. Roy, learned senior counsel for the O.P. No. 2

vehemently opposes the petition and submits that the petitioner was not co-

operating with the Investigating Officer. He submits that notice under

section 41-A Cr.P.C. was issued to the petitioner and the petitioner has not

responded to that notice. He submits that there are contradictory statement

in the petition and supplementary affidavit about the receipt of notice. He

further submits that there is no illegality in order dated 27.01.2020 whereby

process under section 82 Cr.P.C. has been issued against the petitioner.

According to him that order is well reasoned order and this Court may not

interfere with that order and this petition is fit to be dismissed.

7. Mr. Someshwar Rai, learned counsel for the State submits that in

para 57 of the case diary, it has been recorded that petitioner is evading his

arrest.

8. The Court has gone through the entire record and also perused

the impugned orders.

9. On 09.05.2019 the case was received to the concerned court

and on 15.07.2019 this case was transferred to the Court of learned C.J.M,

Hazaribag, by the order of the Sessions Judge, Hazaribag. Thereafter by

order dated 23.10.2019 non-bailable warrant of arrest has been issued

against the petitioner. This is a case under section 498-A I.P.C. and for such

cases, the Hon'ble Supreme Court has laid down law in the case of " Arnesh

Kumar Vs. State of Bihar" reported in 2014 8 SCC 273 wherein para 11

the following directions were issued:-

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable

for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

10. Thus, in such type of cases, the Court and I.O. are required to

follow the procedure laid down by the Hon'ble Supreme Court in the case

of "Arnesh Kumar" (supra).

11. By order dated 23.10.2019, N.B.W. has been issued against the

petitioner but there is nothing to suggest in the order-sheet that prior to

issuing N.B.W., any summon or bailable warrant of arrest has been issued

against the petitioner or not. The email receipt annexed as Annexure-4

suggests that the petitioner was not evading his arrest. The jointing report

brought on record by way of supplementary affidavit also suggests that the

petitioner was on earned leave from 25.11.2019 to 05.02.2020. Further rent

agreement brought on record by way of supplementary affidavit also

suggests that after expiry of agreement, the petitioner has vacated the said

house. The telephone conference arranged by the I.O. between petitioner

and O.P. No. 2 suggest that the petitioner co-operated with the Investigating

Officer wherein the I.O. tried to compromise between the petitioner and the

informant. The conversation is annexed with the supplementary affidavit.

Thus, it cannot be said that the petitioner is evading his arrest. Without

issuing summons and bailable warrant of arrest, vide order dated

23.10.2019, non-bailable warrant of arrest has been issued against the

petitioner which is against the mandate of the judgment in the case of

Arnesh Kumar" (supra).

12. Since, the first order i.e. order dated 23.10.2019 by which

N.B.W. has been issued against the petitioner, is bad in law, subsequent

order dated 27.01.2020 by which proclamation under section 82 Cr.P.C. has

been issued against the petitioner, is not sustaining. It has been submitted

by the learned senior counsel for the petitioner, on instruction, that

petitioner is ready to co-operate with the investigation.

13. In view of the above facts, order dated 27.01.2020 whereby

process under section 82 Cr.P.C. has been issued against the petitioner and

order dated 23.10.2019 whereby non-bailable warrant of arrest has been

issued against the petitioner passed in Lohsinghna P.S. Case No. 67 of 2019,

are hereby quashed.

14. The matter is remitted back to the court of learned A.C.J.M,,

Hazaribagh to proceed afresh in accordance with law.

15. The criminal miscellaneous petition is allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Satyarthi/