Jharkhand High Court
Ashok Upadhayay @ Ashok Kumar Upadhayay ... vs The State Of Jharkhand ... Opposite ... on 5 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2604 of 2019
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Ashok Upadhayay @ Ashok Kumar Upadhayay aged about 55 years,
Son of Late Bhagwat Upadhayay, Resident of- Ghatotand,
Bazartand, P.O.- Ghatotand, P.S.- Mandu, District- Ramgarh,
Jharkhand ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Abhijeet Kr. Singh, Advocate
Mr. Harsh Chandra, Advocate
Md. Saif Ali Ansari, Advocate
For the State : Ms. Sushma Aind, 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 five different orders passed by the learned Judicial
Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of
2009 corresponding to G.R. Case No.4252 of 2009.
3. The brief facts of the case is that the petitioner is an accused of the said
case in which charge sheet has been submitted alleging commission of the
offences punishable under Sections 426 and 427 of the Indian Penal Code. Upon
submission of charge sheet vide order dated 05.02.2010 summons were ordered
to be issued to the accused persons of the case including the petitioner.
Summons has never been served upon the petitioner. Bailable warrant of arrest
was issued against the petitioner vide order dated 22.07.2010 and non-bailable
warrant of arrest was issued on 28.10.2010. On 15.04.2011, without recording
any satisfaction that the petitioner is absconding or concealing himself to evade
his arrest and without fixing any time and place for appearance of the
petitioner, proclamation under Section 82 of Cr.P.C. was issued and without
any report that the proclamation has been made being received in the record,
vide order dated 21.02.2012, the attachment order of the property of the
petitioner under Section 83 of Cr.P.C. was issued but erroneously, in paragraph
No.1 and in prayer portion of this criminal miscellaneous petition, it has been
mentioned that vide order dated 12.12.2011 attachment order of property under
Section 83 of Cr.P.C was made.
4. It is next submitted that ultimately vide order dated 23.08.2012, the
petitioner was declared permanent absconder by the learned Judicial
Magistrate-1st Class, Hazaribagh and the learned Judicial Magistrate directed to
transmit the case record to the District Record Room. The petitioner has
challenged the orders dated 23.08.2012, 21.02.2012, 15.04.2011, 28.10.2010 and
22.07.2010, in this, criminal miscellaneous petition.
5. The learned counsel for the petitioner submits that the learned
Magistrate committed a grave illegality by issuing the bailable warrant of arrest
without receipt of the service report of the summons issued to the petitioner
and without the execution report of the bailable warrant of arrest issued against
him having been received, committed a grave illegality in issuing the non-
bailable warrant of arrest.
6. Learned counsel for the petitioner next submits that vide order dated
15.04.2011, a proclamation under Section 82 of Cr.P.C. has been issued without
following the due process of law and without recording the satisfaction that the
petitioner is absconding or concealing himself to evade his arrest which is a sine
qua non for issuing the proclamation under Section 82 of Cr.P.C. that too
without mentioning any time and place for appearance of the petitioner. Hence,
it is submitted that the said order dated 15.04.2011 being not in accordance with
law, be quashed and set aside. It is then submitted by the learned counsel for
the petitioner that the learned Judicial Magistrate vide its order dated
21.02.2012 has issued the attachment order of the property inter alia against the
petitioner without mentioning the property to be attached and without
recording any reason for the necessity for issuing the attachment order and
without any information available in the record that the proclamation under
Section 82 of Cr.P.C. was ever made. Hence, it is submitted that the order dated
21.02.2012 also is not in accordance with law.
7. Learned counsel for the petitioner further submits that so far as the order
dated 23.08.2012 is concerned, the condition precedent for declaring a person
absconder and issuing permanent warrant of arrest is that, it must be proved
before the court concerned, that the accused has absconded and there is no
immediate prospect of arresting him but in this case, there being no material in
the record to suggest that there is no immediate prospect for arresting the
petitioner, the learned Judicial Magistrate committed a grave illegality in
declaring the petitioner an absconder and issuing permanent warrant of arrest.
Hence, it is submitted that the prayer made by the petitioner in this Cr.M.P. be
allowed.
8. The learned Addl.P.P. appearing for the State on the other hand opposes
the prayer to quash the said five orders already mentioned in the foregoing
paragraphs of this Judgment and submits that the very fact that the learned
Judicial Magistrate has issued the bailable warrant of arrest, non-bailable
warrant of arrest, proclamation under Section 82 of Cr.P.C., the orders of
attachment under Section 83 of Cr.P.C. and the order declaring the petitioner to
be an absconder itself shows that there were materials available in the record
for the learned Judicial Magistrate to be satisfied that there is justification for
issuance of such bailable warrant of arrest, non-bailable warrant of arrest,
proclamation under Section 82 of Cr.P.C., order for attachment and declaring
the petitioner, who is the accused person of the case concerned, to be an
absconder. Hence, it is submitted that this Criminal Miscellaneous Petition
being without any merit, be dismissed.
9. 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 the learned Magistrate had already passed an order for issue of
summons to the petitioner so without the service report of the summons issued,
the Magistrate ought not have issued the bailable warrant of arrest vide order
dated 22.07.2010. Hence, the order dated 22.07.2010 is not sustainable in law
and liable to be quashed and set aside. Therefore, the same is quashed and set
aside.
10. So far as the order dated 28.10.2010 is concerned, the learned Magistrate
has certainly committed a grave illegality by issuing the non-bailable warrant
of arrest even though the execution report of the bailable warrant of arrest was
not received. Since the learned Magistrate has issued the bailable warrant of
arrest vide order dated 22.07.2010, it was incumbent upon the learned judicial
Magistrate to ensure that the same is executed and the report of the same is
received back. Having not done so but still issuing the non-bailable warrant of
arrest amounts to a gross illegality. Hence, the order dated 28.10.2010 is also
not sustainable in law. Therefore, the same is quashed and set aside.
11. So far as the order dated 15.04.2011 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 the
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 Judicial Magistrate 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 Judicial Magistrate has committed gross 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 continuation of the same will amount to abuse of process of law. Therefore,
this is a fit case where the order dated 15.04.2011, be quashed and set aside.
12. Accordingly, the order dated 15.04.2011 passed by the learned Judicial
Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of
2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set aside.
13. So far as the order dated 21.02.2012 is concerned, it is a settled principle
of law that the court issuing the proclamation under Section 82 of Cr.P.C. may
for reasons to be recorded in writing at any time after the issue of the
proclamation, 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 Judicial Magistrate-
1st Class, Hazaribagh has committed gross 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 of
attachment of the property of the petitioner dated 21.02.2012 is also not in
accordance with law and continuation of the same will amount to abuse of
process of law. Therefore, this is a fit case where the same, be quashed and set
aside.
14. Accordingly, the order dated 12.12.2011 passed by the learned Judicial
Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case No.41 of
2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set aside.
15. So far as the order dated 23.08.2012 is concerned, it is a settled principle
of law that before exercising the power under Section 299 of the Code of
Criminal Procedure, it is necessary that all conditions prescribed must be
strictly complied with namely the court must be satisfied that the accused has
absconded or that there is no immediate prospect of arresting him, as has been
held by the Hon'ble Supreme Court of India in the case of Nirmal Singh vs.
State of Haryana reported in (2000) 4 SCC 41.
16. Now coming to the facts of the case, the perusal of the record reveals that
there is absolutely no material in the record to suggest that the petitioner has
absconded or that there is no immediate prospect of arresting him. In the
absence of that, certainly the learned Judicial Magistrate-1st Class, Hazaribagh
has committed a grave illegality by declaring the petitioner to be an absconder
and issuing permanent warrant of arrest against the petitioner. Hence, this
Court is of the considered view that the order dated 23.08.2012 passed by the
learned Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S.
Case No.41 of 2009 corresponding to G.R. Case No.4252 of 2009 being not
sustainable in law. Hence, the same be quashed and set aside.
17. Accordingly, the order dated 23.08.2012 passed by the the learned
Judicial Magistrate-1st Class, Hazaribagh in connection with Charhi P.S. Case
No.41 of 2009 corresponding to G.R. Case No.4252 of 2009, is quashed and set
aside.
18. This Criminal Miscellaneous Petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 05th of September, 2024
AFR/ Saroj
