Jharkhand High Court
Kanto Maji @ Kant Maji vs State Of Jharkhand on 28 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1956 of 2019
Kanto Maji @ Kant Maji ..... ... Petitioner
Versus
State of Jharkhand ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Bhaiya V. Kumar, Advocate
For the State : Mrs. Lily Sahay, A.P.P.
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07/ 28.09.2021 Heard Mr. Bhaiya V. Kumar, learned Counsel appearing for
the petitioner and Mrs. Lily Sahay, learned counsel appearing for the
State.
2. 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.
3. This criminal miscellaneous petition has been filed for
quashing of the order dated 19.03.2019, by which, warrant of arrest has
been directed to be issued against the petitioner. The order dated
16.04.2019 is also under challenge, by which, proclamation under Section
82 Cr.P.C. has been directed to be issued against the petitioner.
4. By way of I.A. No. 9060 of 2019, the petitioner has
challenged the order dated 28.06.2019, whereby, process under Section 83
Cr.P.C. has been directed to be issued against the petitioner. The said I.A.
was allowed by order dated 22.11.2019.
5. In view of the above, the petitioner seeks indulgence of this
Court to quash the orders dated 19.03.2019, 16.04.2019 and 28.06.2019,
by which, warrant of arrest and processes under Sections 82 and 83
Cr.P.C. have been directed to be issued against the petitioner, in
connection with Nala P.S. Case No. 13 of 2019, pending in the Court of
learned Chief Judicial Magistrate, Jamtara.
6. Mr. Bhaiya V. Kumar, learned counsel appearing for the
petitioner submits that the petitioner has filed his anticipatory bail
application before the concerned Court, in which, case diary was called
for, however, the case diary was not produced before the concerned Court
and the I.O. has filed the application for issuance of process under Section
82 Cr.P.C. He submits that by order dated 16.04.2019, process under
Section 82 Cr.P.C. has been directed to be issued against the petitioner. He
further submits that on 28.6.2019, process under Section 83 Cr.P.C. has
also been issued against the petitioner.
7. On perusal of the order dated 16.04.2019, it transpires that
the concerned Court has issued process under Section 82 Cr.P.C. without
recording any reasons and without execution report of the summons and
bailable warrant and merely on the application of the I.O. the said order
has been passed.
8. On perusal of Section 82 of the Cr.P.C., it appears that if any
Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it has absconded
or is concealing himself so that such warrant cannot be executed, such
Court may publish a written proclamation requiring him to appear at a
specified place and at a specified time not less than thirty days from the
date of publishing such proclamation.
9. However, this requirement of Section 82 Cr.P.C. has not been
followed in passing the aforesaid orders, as in paras-9 and 10 of the
petition, it has been mentioned that the petitioner filed his application for
anticipatory bail, in which, case diary has been called for and in place of
submitting the case diary before the concerned court, the I.O. has filed an
application for issuance of process under Section 82 Cr.P.C.
10. In view of the above, the order dated 16.04.2019 is bad in law
in view of the judgment passed by this Court in the case of Md. Rustam
Alam @ Rustum & Ors. V. The State of Jharkhand, reported in 2020 (2)
JLJR 712, the subsequent order could not survive.
11. In view of the aforesaid discussions and considering the law
laid down in the case of Md. Rustum Alam @ Rustam & Ors. (Supra),
the impugned orders dated 19.03.2019, 16.04.2019 and 28.06.2019, by
which, warrant of arrest and processes under Sections 82 and 83 Cr.P.C.
have been directed to be issued against the petitioner, in connection with
Nala P.S. Case No. 13 of 2019, pending in the Court of learned Chief
Judicial Magistrate, Jamtara, are hereby, quashed. The matter is remitted
back to the Court of learned Chief Judicial Magistrate, Jamtara to proceed
afresh in terms of the Code of Criminal Procedure and the judgment
passed by this Court in the case of Md. Rustum Alam @ Rustam & Ors.
(Supra).
12. With the aforesaid observation and direction, this criminal
miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
