Jharkhand High Court

Biswanath Hembrom vs State Of Jharkhand on 8 July, 2022

                                                    1                   Cr.M.P. No. 875 of 2021


                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 875 of 2021
             Biswanath Hembrom, aged about 63 years, Son of Late Dashrath
             Hembrom, Resident of L- Road, Quarter No.70, Bistupur, Jamshedpur, P.O.
             & P.S. Bistupur, Dist. East Singhbhum, Jharkhand    ... 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. Naveen Kumar Jaiswal, Advocate For the Opposite Party-State : Mrs. Priya Shrestha, Spl.P.P.

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09/08.07.2022. Heard Mr. Naveen Kumar Jaiswal, learned counsel for the petitioner

and Mrs. Priya Shrestha, learned counsel for the State.

2. This petition has been filed for quashing the order dated 25.02.2021

to the extent of address of the accused Lakhi Ram Baskey and for quashing

of order dated 17.03.2021 passed by the learned Judicial Magistrate,

1st Class, East Singhbhum at Jamshedpur in connection with Sundernagar

P.S. Case No.22/2017 dated 04.07.2017 corresponding to G.R. Case

No.1867/2017(S), pending in the court of the learned Judicial Magistrate,

1st Class, East Singhbhum at Jamshedpur.

3. Learned counsel for the petitioner submits that the petitioner is the

father-in-law of the accused namely Lakhi Ram Baskey. He further submits

that an application has been filed by the I.O. to the concerned court for

change of address of the accused from his permanent address to the

residential address of the petitioner. According to him, the petitioner has no

knowledge about filing of the application of the I.O. and the petitioner was

also not knowing on what basis said application was filed by the I.O. for

change of address, wherein the I.O. himself has accepted that the

permanent address of the accused is somewhere else. He further submits

that the petitioner came to know only after passing of the order dated

25.02.2021 whereby process has been directed to be issued against the

accused on the address of the petitioner. He also submits that the accused

used to reside at different rented houses at the place of his posting. He

further submits that the daughter of the petitioner has filed divorce suit

against the accused namely Lakhi Ram Baskey. He also submits that the

accused is not residing along with this petitioner and in spite of that process

has been issued on the address of the petitioner.

4. Mrs. Priya Shrestha, learned counsel for the State submits that there

is no illegality in the impugned order.

5. There are procedures in the Code to issue process under Section 82

Cr.P.C. If earlier remedies have been exhausted thereafter only process

under Section 82 Cr.P.C. can be issued. Admittedly, this petitioner is not an

accused. The accused is Lakhi Ram Baskey, who is son-in-law of the

petitioner. The daughter of the petitioner has filed divorce suit against her

husband. For the sake of argument, even if it is presumed that this

petitioner has provided shelter to the accused, there are procedure of

searching the house by way of invoking proper jurisdiction, which has not

been done. It is well settled that it is the duty and obligation of the criminal

court to exercise a great deal of caution in issuing the process. A reference

may be made to the judgment rendered by this Court in the case of Inder

Mohan Goswami & another v. State of Uttaranchal & others ,

reported in (2007) 12 SCC 1. Paragraphs 23, 24, 46, 49, 51, 53, 56 and

57 of the said judgment are quoted herein below:

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC.

Every High Court has inherent power to act ex debito justitiae

to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.

49. In State of U.P. v. Poosu14 at SCC p. 5, para 13 the Court observed:

"13. ... Whether in the circumstances of the case, the attendance of the accused-respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as, the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and State.*"

51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or • it is considered that the person could harm someone if not placed into custody immediately.

56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant."

6. In the case in hand, admittedly the petitioner is not the accused and

without ascertaining whether the accused is residing with the petitioner or

not and the application was filed by the I.O. for issuance of proclamation

under Section 82 Cr.P.C. on the address of the petitioner. The daughter of

the petitioner has already filed divorce suit against the accused namely

Lakhi Ram Baskey. The petitioner has not been called upon earlier and no

enquiry with regard to provide shelter to the accused has been made and

straightway, proclamation on the address of the petitioner has been issued,

which is against the mandate of law.

7. Accordingly, the processes issued on the address of the petitioner

shall not be given effect. The learned court shall take steps of proclamation

on the address of the accused as it has been disclosed in the letter of the

I.O. where the permanent address of the accused has already been

disclosed.