Jharkhand High Court
Upendra Soni vs The State Of Jharkhand on 1 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2463 of 2020
Upendra Soni, aged about 35 years, S/o Santan Soni, R/o Village-Girdaur,
P.O. & P.S. Girdaur, District- Chatra ... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioner : Mr. Rishi Pallava, Advocate
For the Opposite Party-State : Mr. Prabir Kumar Chatterjee, S.P.P.
-----
05/01.11.2022. This petition has been filed for quashing the orders dated 16.09.2019,
16.12.2019 and 04.02.2020, whereby, 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. By way of I.A. No.8396 of 2022, the
order dated 15.06.2022 whereby permanent warrant of arrest in connection
with Kolebira P.S. Case No.02/2019, G.R. Case No.93/2019(S), now pending
in the court of the learned Chief Judicial Magistrate, Simdega against the
petitioner has been challenged. The said I.A. has been allowed vide order
dated 20.09.2022.
2. Learned counsel for the petitioner submits that during the pendency
of this petition, permanent warrant of arrest has been issued against the
petitioner and the prayer for amendment has been allowed by this Court
vide order dated 20.09.2022 and the said order was allowed to be
challenged. He further submits that vide order dated 08.01.2021, this Court
has called upon the State to bring on record the document with regard to
notice issued under Section 41-A Cr.P.C. He also submits that the said notice
has not been brought on record by the State. He further submits that the
petitioner was not named in the FIR. The petitioner has not received any
notice under Section 41-A Cr.P.C. and only on the application of the I.O., the
learned court has issued non-bailable warrant of arrest and processes under
Sections 82 and 83 Cr.P.C. have been directed to be issued against the
petitioner.
3. Learned counsel for the State submits that counter affidavit has been
filed. He tried to justify the impugned orders. He fairly submits that notice
under Section 41-A Cr.P.C. has not been brought on record by way of filing
affidavit.
4. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the materials on the record. It appears
that vide order dated 08.01.2021, the State was directed to bring on record
the notice under Section 41-A Cr.P.C. The State has not filed any further
affidavit and the document in support of issuance of notice issued under
Section 41-A Cr.P.C. has not been brought on record, which suggest that
notice under Section 41-A Cr.P.C. was not issued against the petitioner and
only on the application of the I.O., the learned court has directed to issue
non-bailable warrant of arrest and processes under Sections 82 and 83
Cr.P.C. against the petitioner. Section 41-A Cr.P.C. is not a format, it is a
statutory provision and the police is required to follow the provision in view
of the judgment passed by the Hon'ble Supreme Court in Arnesh Kumar
v. State of Bihar & another; [(2014) 8 SCC 273].
5. In view of the above facts and considering that in absence of notice
under Section 41-A Cr.P.C. and only on the application of the I.O., the
learned court has passed the impugned orders, the orders dated
16.09.2019, 16.12.2019 and 04.02.2020 and 15.06.2022 passed in
connection with Kolebira P.S. Case No.02/2019, G.R. Case No.93/2019(S),
now pending in the court of the learned Chief Judicial Magistrate, Simdega
are, hereby, quashed. The matter is remitted back to the learned court to
proceed afresh, in accordance with law.
6. Accordingly, this petition stands allowed and disposed of.
7. Interim order dated 20.09.2022 stands vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/
