Jharkhand High Court
Ashok Bhagat vs The State Of Jharkhand on 4 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2409 of 2021
Ashok Bhagat ..... ... Petitioner
Versus
The State of Jharkhand ..... ... Opposite Party
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioner : Mr. Altamash Khan, Advocate
For the State : Mr. Prabhu Dayal Agrawal, Spl.P.P.
------
05/ 04.01.2022 Heard Mr. Altamash Khan, learned counsel appearing for the
petitioner and Mr. Prabhu Dayal Agrawal, learned Spl.P.P. 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 orders dated 20.12.2019, 25.05.2021 and 18.08.2021, by
which, non-bailable warrant of arrest and processes under Sections 82 and
83 Cr.P.C. respectively have been directed to be issued against the
petitioner, in connection with S.T. No. 26 of 2021, arising out of
Serengdag P.S. Case No. 05 of 2019, pending in the Court of learned
Additional Sessions Judge-III, Lohardaga.
4. Learned counsel appearing for the petitioner submits that
there is no execution report on the record and by a cryptic order, non-
bailable warrant of arrest has been issued against the petitioner by order
dated 20.12.2019. He submits that the process under Section 82 is also not
in terms of the law laid down in the case of Md. Rustam Alam @ Rustum
& Ors. V. The State of Jharkhand, reported in 2020 (2) JLJR 712.
5. Mr. Prabhu Dayal Agrawal, learned Spl.P.P., appearing for the
State submits that there is no illegality in the impugned orders and this
case is fit to be dismissed.
6. On perusal of the impugned order dated 20.12.2019, it
transpires that the execution report of notice is not disclosed and the
Sections, against which, cognizance has been taken against the petitioner
are punishable upto 7 years.
7. In the case of Arnesh Kumar Versus State of Bihar and Anr.,
reported in (2014) 8 SCC 273, the Hon'ble Supreme Court in paras-11 to
13 held as follows:-
"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.
12. We hasten to add that the directions aforesaid shall
not only apply to the cases under Section 498-A IPC or
Section 4 of the Dowry Prohibition Act, the case in hand,
but also such cases where offence is punishable with
imprisonment for a term which may be less than seven
years or which may extend to seven years, whether with
or without fine.
13. We direct that a copy of this judgment be forwarded to
the Chief Secretaries as also the Director Generals of
Police of all the State Governments and the Union
Territories and the Registrar General of all the High
Courts for onward transmission and ensuring its
compliance."
8. The order, by which, process under Section 82 Cr.P.C. has
been directed to be issued, there is no satisfaction recorded by the
concerned Court, and also there is no mention of date and time, which is
mandatory in terms of the order passed by this court in Md. Rustam
Alam @ Rustum & Ors. V. The State of Jharkhand, reported in 2020 (2)
JLJR 712 [particularly in paras-22 and 23 thereof].
9. Since the order dated 25.05.2021, by which, process under
Section 82 Cr.P.C. has been directed to be issued is bad, subsequent order
will not survive.
10. In that view of the matter, the impugned orders dated
20.12.2019, 25.05.2021 and 18.08.2021, by which, non-bailable warrant
of arrest and processes under Sections 82 and 83 Cr.P.C. respectively have
been directed to be issued against the petitioner, in connection with S.T.
No. 26 of 2021, arising out of Serengdag P.S. Case No. 05 of 2019,
pending in the Court of learned Additional Sessions Judge-III, Lohardaga,
are hereby, quashed and set aside. The matter is remitted back to the
Court of learned Additional Sessions Judge-III, Lohardaga to proceed
afresh in accordance with law.
11. With the aforesaid observation and direction, this criminal
miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
