Jharkhand High Court
Manisha Devi @ Manisha vs The State Of Jharkhand on 2 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 4448 of 2022
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1. Manisha Devi @ Manisha
2. Sushant Kumar Rai .... .... .... Petitioners
Versus
The State of Jharkhand .... .... .... Opp. Party
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Krishna Murari, Advocate
For the State : Mrs. Nehala Sharmin, A.P.P.
For the Informant : Mr. Akash Bhushan, Advocate
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Order No. 03 Dated : 02.02.2023
This criminal miscellaneous petition has been filed for quashing the
order dated 21.11.2022 passed in Chas P.S. Case No.203 of 2022 by Sub-
Divisional Judicial Magistrate, Bokaro, whereby and whereunder process
under Section 82 Cr.P.C has been issued.
The order has been challenged mainly on the ground that the
guidelines as laid down in Md. Rustum Alam @ Rustam & Ors. Vs. The State
of Jharkhand reported in 2020 (2) JLJR 712 has not been followed while
issuing the process. The other judgments in which the order of issuance of
process under Section 82 Cr.P.C has been quashed by the co-ordinate Bench of
this Court on similar footing has also been cited.
Learned A.P.P. assisted by learned counsel appearing on behalf of the
informant submits that the spirit of the Md. Rustum Alam @ Rustam & Ors.
Case is about special reasons for issuance of process under Section 82. The
petitioner had full knowledge of the processes having been issued against and
he was deliberately avoiding the processes.
By order dated 31.08.2022, non-bailable warrant was issued as the
petitioners had not responded to the notices issued under Section 41 A of Cr.P.C
on 19.07.2022 and 29.07.2022.
From the impugned order dated 21.11.2022 it will be apparent that the
Investigating Officer submits the requisition for issuance of process by order
dated 11.02.2022 the process under Section 82 Cr.P.C. was issued after receipt of
the execution report from which it was apparent that the Investigating Officer that
the accused persons were evading arrest.
The sole point of challenge to the issuance of process on the basis of
ration laid down in Md. Rustaum Alam @ Rustam Vs. State of Jharkhand, in
which it has been regarding issuance of process under Section 82 Cr.P.C
retreated that if any court has reason to believe that any person against whom a
warrant has been issued evading his arrest by concealing himself so that warrant
cannot be executed, such court may issue in written proclamation only after
regarding his satisfaction that the person concerned is deliberately absconding
from the process of court. Further in order to ensure that court must apply mind
in such cases before issuing of process under Section 82 it has also been provided
as a safeguard that the date and place should also be set out in the order sheet.
The main argument is that these details has not furnished in the order of issuance
of process.
I have gone through the order of issuance of warrant as well that of the
issuance of process under Section 82 Cr.P.C. Both the orders are speaking and
reasoned orders. The order issuing warrant of arrest is specifically states that
notices earlier issued under section 41 of the Cr.P.C has not been complied with.
The order of issuance of process under Section 82 of the Cr.P.C is after receipt of
the execution report submitted by the investigating officer. The facts of the
present case is different from the authority relied upon. In Md Rustum Alam @
Rustam the order of issuance of non-bailable warrant, process under section 82
and 83 of the Code where all issued without application of mind in a technical
manner and without any execution report on the record.
The ratio of Md Rustum Alam @ Rustam (supra) is that a nonspeaking
order involving a procedure which attracts a penal provision cannot be sustained
in the eyes of law. Here I do not find that it is a non-speaking order and therefore
the order impugned cannot be set aside. It should not be lost sight of the fact that
under Section 466 of the Cr.P.C even an order of attachment shall not be deemed
unlawful merely on account of defect or error in the process. I do not find any
illegality. The court has recorded sufficient reason in the matter.
Before parting it needs to be pointed out that a prosecution under
section 138 of the NI Act is not permissible on the basis of FIR, for which a
specific complaint needs to be filed as mandated under Section 142 of the NI Act.
The learned court below shall consider this aspect while considering the bail
application of the petitioners.
The criminal miscellaneous petition is dismissed.
(Gautam Kumar Choudhary, J.)
Rohit/-
