Jharkhand High Court
Mohammad Mansoor @ Mansoor @ Mansoor ... vs The State Of Jharkhand on 29 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.2886 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2886 of 2023
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Mohammad Mansoor @ Mansoor @ Mansoor Alam, aged about 38
years, son of Mohammad Lukman Miyan, resident of Village-
Mhanth Mainyari, P.O.+P.S.-Silout, Dist.-Muzaffarpur (Bihar)
... Petitioner
Versus
The State of Jharkhand
... Opposite Party
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For the Petitioner : Mr. Birendra Kumar, Advocate
: Mr. Raj Kishore Sahu, Advocate
For the State : Mrs. Rashmi Kumar, Addl. P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the order dated 15.12.2016 by which upon submission of
supplementary charge sheet against the petitioner citing the petitioner as an
accused, who is an absconder, the learned A.C.J.M., Jamtara issued non-
bailable warrant of arrest, order dated 28.03.2018 by which the proclamation
under Section 82 Cr.P.C. has been issued, order dated 25.09.2018 by which
attachment of the property of the petitioner who is the accused person of the
case under Section 83 Cr.P.C. has been issued and order dated 15.02.2020 by
which permanent warrant of arrest has been issued against the petitioner.
Further prayer has also been made to quash and set aside the entire criminal
proceeding including the FIR of Kundhit P.S. Case No. 62 of 2015,
corresponding to G.R. No. 633 (A) of 2015 in respect of orders passed for which
this criminal miscellaneous petition has been filed.
3. The brief fact of the case is that the petitioner is an accused of Kundhit
P.S. Case No. 62 of 2015 involving the offence punishable under Sections 279,
427, 295A and 34 of Indian Penal Code and consequent upon submission of
supplementary charge sheet, the said orders as already indicated above has
been passed.
4. It is submitted by the learned counsel for the petitioner that the allegation
against the petitioner are all false and no offence has been committed by the
petitioner and the said orders have been passed without following the due
process of law. Relying upon the judgment of a coordinate Bench of this Court
in the case of Rajan Raj Bharti vs. State of Jharkhand reported in (2021) 4 JLJR
430, it is submitted by the learned counsel for the petitioner that if the first
order of issuing proclamation under Section 82 Cr.P.C. is illegal then the
subsequent orders dated 25.09.2018 and 15.02.2020 will also not survive in the
eye of law. Hence, it is submitted that the prayers as made in this criminal
miscellaneous petition be allowed.
5. Learned Addl. P.P. appearing for the State vehemently opposes the
prayer for quashing the entire criminal proceeding including the FIR of
Kundhit P.S. Case No. 62 of 2015, corresponding to G.R. No. 633 (A) of 2015
and submits that there is direct and specific allegation against the petitioner
that the petitioner was involved in transportation of beef illegally and he was
found red handed carrying the same in a vehicle which met with an accident
and the petitioner was involved in committing mischief and indulging in
deliberate and malicious intention to outrage the religious feeling of a class of
citizen of India besides committing the offence punishable under the penal
provision of Jharkhand Bovine Animal (Prohibition of Slaughter) Act, 2005.
Hence, at this nascent stage, there is no justifiable reason to quash the entire
criminal proceeding against the petitioner. Hence, it is submitted that this
criminal miscellaneous petition being without any merit be dismissed.
6. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that since there is direct and specific allegation against the petitioner of
committing mischief and indulging in deliberate and malicious intention to
outrage the religious feeling of a class of citizen of India as well as committing
the offence punishable under the penal provision of Jharkhand Bovine Animal
(Prohibition of Slaughter) Act, 2005, this Court is of the considered view that
there is no justifiable reason to quash the entire criminal proceeding or the FIR
of the case.
7. So far as the order dated 15.12.2016 is concerned, the undisputed fact is
that the petitioner is involved in a non-bailable offence and the petitioner was
absconding and supplementary charge sheet has been submitted against him
showing him as an absconder. Under such circumstances, the learned trial
court having issued the non-bailable warrant of arrest against this petitioner,
this Court do not find any illegality in the order dated 15.12.2016 hence, the
said order dated 15.12.2016 does not want any interference by this Court in
exercise of the jurisdiction under Section 482 Cr.P.C.
8. So far as the order dated 28.03.2018 is concerned, by now it is a settled
principle of law that the court which issues the proclamation under Section 82
of Cr.P.C. must record its satisfaction that the accused in respect of whom the
proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing
himself to evade his arrest and in case the court decides to issue proclamation
under Section 82 of Cr.P.C., it must mention the time and place for appearance
of the petitioner in the order itself by which the proclamation under Section 82
of Cr.P.C. is issued. As already indicated above since the learned Additional
Chief Judicial Magistrate, Jamtara has neither recorded its satisfaction that the
petitioner is absconding or concealing himself to evade his arrest nor fixed any
time or place for appearance of the petitioner, this Court has no hesitation in
holding that the learned Additional Chief Judicial Magistrate, Jamtara has
committed illegality by issuing the said proclamation under Section 82 of
Cr.P.C. without complying the mandatory requirements of law. Hence, the
same is not sustainable in law and the continuation of the same will amount to
abuse of process of law and this is a fit case where the order dated 28.03.2018 be
quashed and set aside. Accordingly, the order dated 28.03.2018 passed by the
learned Additional Chief Judicial Magistrate, Jamtara in G.R. No.633(A) of
2015, is quashed and set aside.
9. So far as the order dated 25.09.2018 is concerned, it is a settled principle
of law that the court issuing proclamation under Section 82 of Cr.P.C. may for
reasons to be recorded in writing at any time after the issue of proclamation,
may order for attachment of any property movable or immovable or both
belonging to the proclaimed person. Now, in the absence of any material in the
record to suggest that the proclamation under Section 82 of Cr.P.C. was in fact
made in accordance with law, certainly the learned Additional Chief Judicial
Magistrate, Jamtara committed illegality by passing the order of attachment of
property of the petitioner without mentioning the description of the property to
be attached and without recording any reason in writing about the need for
passing such order of attachment. Hence, under such circumstances, this Court
has no hesitation in holding that the order dated 25.09.2018 passed by the
learned Additional Chief Judicial Magistrate, Jamtara in G.R. No. 633(A) of
2015 is also not in accordance with law and continuation of the same will
amount to abuse of process of law and this is a fit case where the order dated
25.09.2018 passed by the Additional Chief Judicial Magistrate, Jamtara in G.R.
No. 633(A) of 2015, be quashed and set aside.
10. Accordingly, the 25.09.2018 passed by the Additional Chief Judicial
Magistrate, Jamtara in G.R. No. 633(A) of 2015, is quashed and set aside.
11. So far as the order dated 15.02.2020 is concerned, Section 299 of Code of
Criminal Procedure provides a procedure in exception to the principle
embodied in Section 33 of Evidence Act in as much as under Section 33 of
Evidence Act if a witness who is a party has no right or opportunity to cross-
examine the witnesses; such evidence is not illegally admissible but under
Section 299 Cr.P.C. under certain circumstances, such evidence can still be
admissible if the necessary all conditions prescribed in Section 299 Cr.P.C. are
strictly complied with, viz. the court must be satisfied that the accused has
absconded or there is no immediate prospect to arrest him; as has been held by
the Hon'ble Supreme Court of India in the case of Nirmal vs. State reported in
(2000) 4 SCC 41.
12. As already indicated above, for passing such an order under Section 299
Cr.P.C., it must be proved that the accused person of the case is absconding and
that there is no immediate prospect of arresting him.
13. Now coming to the facts of the case, there is absolutely no finding given
by the learned Additional Chief Judicial Magistrate, Jamtara to the effect that
there is no immediate prospect of arresting the petitioner nor there is any effort
was made by the learned Additional Chief Judicial Magistrate, Jamtara to
examine any witness.
14. Under such circumstances, the exercise of the jurisdiction of the learned
Additional Chief Judicial Magistrate, Jamtara in issuing permanent warrant of
arrest against the petitioner is not sustainable in law. Accordingly, the same is
quashed and set aside.
15. In view of the discussions made above, this criminal miscellaneous
petition is disposed of accordingly.
16. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 29th January, 2024
AFR/ Sonu-Gunjan/-
