Jharkhand High Court
Tipu Sultan Khan @ Tipu Sultan vs The State Of Jharkhand on 26 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1827 of 2021
1. Tipu Sultan Khan @ Tipu Sultan
2. Nurjahan Khatun @ Noorjahan Khatoon
3. Nasiba Begum ..... ... Petitioners
Versus
1. The State of Jharkhand
2. Kishwar Praween ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Ajay Kumar Sah, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
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04/ 26.10.2021 Heard Mr. Ajay Kumar Sah, learned counsel appearing for the
petitioners and Mrs. Priya Shrestha, learned Spl.P.P. for the State.
2. This criminal miscellaneous petition has been filed for
quashing of the orders dated 06.03.2020 and 04.09.2020, by which, non-
bailable warrant of arrest and process under Section 82 Cr.P.C.
respectively have been directed to be issued against the petitioners, in
connection with Daltonganj (Town) P.S. Case No. 10 of 2020, pending in
the Court of learned Chief Judicial Magistrate, Palamau at Daltonganj.
3. Learned counsel appearing for the petitioners submits this
case arises out of a matrimonial dispute and without following the
provisions of Section 73 of the Cr.P.C., straightway non-bailable warrant
of arrest has been directed to be issued against the petitioners, which is
against the mandate of law. He submits that the order issuing non-bailable
warrant of arrest itself is bad in law the subsequent order will not survive.
According to him, there is no mention of satisfaction of the learned
Magistrate, which is mandatory in passing the order under Section 82
Cr.P.C.
4. Mrs. Priya Shrestha, learned Spl. P.P. appearing for the State
submits that there is no illegality in the impugned orders. She submits that
since the petitioners were evading their arrest, the impugned orders have
been passed.
5. On perusal of the entire ordersheet, it appears that on
07.01.2020 the FIR was received in the concerned Court. On 14.01.2020,
on the application of the I.O., bailable warrant of arrest has been directed
to be issued. By order dated 06.03.2020, the non-bailable warrant of arrest
has also been directed to be issued against the petitioners, however, there
is no mention in that order about the summons and notices received by the
petitioners. In the order dated 04.09.2020, there is no satisfaction
recorded by the learned Magistrate, which is one of the parameters of
order under Section 82 Cr.P.C. The date, time and place are not indicated
in the order, which is statutory in nature in terms of Form-IV Cr.P.C., as
held by this court in Md. Rustam Alam @ Rustum & Ors. V. The State of
Jharkhand, reported in 2020 (2) JLJR 712.
6. The contention of learned counsel appearing for the State that
notice under Section 41-A Cr.P.C. has been issued against the petitioners,
but she has not filed any document in the counter affidavit in support
thereof.
7. In the entire ordersheet, the learned Magistrate has not
disclosed about the service of any notice upon the accused. The present
case is arising out of the matrimonial dispute and for issuing the warrant
of arrest, the guidelines issued in para-17 by the Hon'ble Supreme Court
in the case of "Arnesh Kumar Vs. State of Bihar" reported in (2014) 8
SCC 273 is required to be followed. 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).
8. In view of the above, the impugned order dated 06.03.2020,
by which, non-bailable warrant of arrest has been directed to be issued
against the petitioners, in connection with Daltonganj (Town) P.S. Case
No. 10 of 2020, pending in the Court of learned Chief Judicial Magistrate,
Palamau at Daltonganj, is hereby, quashed. Since the first order is bad in
law, the subsequent order will not survive, as such, the subsequent order
dated 04.09.2020, by which, process under Section 82 Cr.P.C. has been
directed to be issued against the petitioners, is also quashed. The matter is
remitted back to the Court of learned Chief Judicial Magistrate, Palamau
to proceed afresh in terms of the Code of Criminal Procedure and the
judgment passed by the Hon'ble Supreme Court in the case of "Arnesh
Kumar" (supra).
9. With the aforesaid observation and direction, this criminal
miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
