Jharkhand High Court
Anuj Kumar vs The State Of Jharkhand on 18 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2617 of 2024
Anuj Kumar, aged about 56 years, S/o Late Bindeshwari Prasad
Mehta, R/o -Village Mangura, P.O. -Kaiyatpur, P.S. -Ichak, District -
Hazaribagh (Jharkhand).
.... Petitioners
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Kumar Basant Narayan, Advocate
For the State : Mr. Rajneesh Vardhan, Addl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 with a prayer to quash the orders
dated 08.02.2023, 12.06.2023 & 17.01.2024, passed by the learned
Additional Sessions Judge-II, Hazaribagh by which respectively
the bailable warrant of arrest, non-bailable warrant of arrest and
the proclamation under Section 82 Cr.P.C. have been issued in
connection with Drugs and Cosmetics Case No. 03 of 2021.
3. The brief facts of the case is that on 08.02.2023, though summons
were issued against the petitioner, without recording any
satisfaction that the same has been served upon the petitioner, the
learned Additional Sessions Judge-II ordered for issuance of
bailable warrant of arrest. On 12.06.2023, without the execution
report of the bailable warrant of arrest being received in the
record, the learned Additional Sessions Judge-II, Hazaribagh
ordered for issuance of the non-bailable warrant of arrest and on
17.01.2024, without fixing any time and place for appearance of
the petitioner, the learned Additional Sessions Judge-II,
Hazaribagh issued the proclamation under Section 82 Cr.P.C.
4. It is submitted by the learned counsel for the petitioner relying
upon the Judgment of this Court in Cr.M.P. No. 1295 of 2024
dated 30.07.2024 that though the learned Additional Sessions
Judge-II, Hazaribagh issued summons to the petitioner and the
summons were never served upon the petitioner, as has been
averred in para-6 of this criminal miscellaneous petition and
without the service report of the summons available in the record,
has issued the bailable warrant of arrest vide order dated
08.02.2023. It is next submitted that the learned Additional
Sessions Judge -II, Hazaribagh committed a grave illegality by
issuing the non-bailable warrant of arrest vide order dated
12.06.2023 in the said case, though execution report of the bailable
warrant of arrest was never received. It is then submitted that
vide order dated 17.01.2024, the proclamation under Section 82
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 Cr.P.C.
that too without mentioning any time and place for appearance of
the petitioner. Hence, it is submitted that the said orders dated
08.02.2023, 12.06.2023 & 17.01.2024, passed by the learned
Additional Sessions Judge-II, Hazaribagh by which respectively
the bailable warrant of arrest, non-bailable warrant of arrest and
the proclamation under Section 82 Cr.P.C. have been issued in
connection with Drugs and Cosmetics Case No. 03 of 2021 being
not in accordance with law be quashed and set aside.
5. The learned Addl. P.P. on the other hand vehemently opposes
the prayer made by the petitioner in this criminal miscellaneous
petition and submits that the very fact that the learned Additional
Sessions Judge-II, Hazaribagh has issued the bailable warrant of
arrest, non-bailable warrant of arrest and the proclamation under
Section 82 of Cr.P.C. itself goes to show that there were materials
available in the record for the learned Additional Sessions Judge-
II, Hazaribagh to be satisfied that there is justification for issuance
of bailable warrant of arrest, non-bailable warrant of arrest and
issuance of proclamation under Section 82 Cr.P.C. 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 the learned Additional Sessions
Judge-II has passed the order for issuance of summons to the
petitioner who was the accused person of the case, so without the
service report of the summons, the learned Additional Sessions
Judge-II has committed a grave illegality by issuing the bailable
warrant of arrest and it was incumbent upon the learned
Additional Sessions Judge-II to ensure that the service report of
the summons have been received back in the court, before issuing
the bailable warrant of arrest. Hence, the said order dated
08.02.2023, passed in connection with Drugs and Cosmetics Case
No. 03 of 2021 is not sustainable in law.
7. So far as the order dated 12.06.2023 is concerned, it is pertinent
to mention here that since the learned Additional Sessions Judge-
II has issued the bailable warrant of arrest, so it was incumbent
upon the learned Additional Sessions Judge-II to ensure that the
execution report of the bailable warrant of arrest is received back,
before issuing the non-bailable warrant of arrest but without
receipt of the execution report of the bailable warrant of arrest, the
learned Additional Sessions Judge-II has committed a grave
illegality by issuing the non-bailable warrant of arrest. Hence, the
order dated 12.06.2023, passed in connection with Drugs and
Cosmetics Case No. 03 of 2021 is also not sustainable in law.
8. So far as the order dated 17.01.2024 is concerned, 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 accused person 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 Sessions Judge-II,
Hazaribagh has neither fixed any time and place for appearance
of the petitioner nor recorded its satisfaction that the petitioner is
absconding or concealing himself to evade his arrest, this Court
has no hesitation in holding that the learned Additional Sessions
Judge-II, Hazaribagh has committed illegality by issuing the said
proclamation under Section 82 of Cr.P.C, without complying the
mandatory requirement of the law. Hence, the same is not
sustainable in law and the continuation of the same will amount
to abuse of process of law. Therefore, this is a fit case where the
order dated 17.01.2024, passed by the learned Additional Sessions
Judge-II, Hazaribagh in Drugs and Cosmetics Case No. 03 of 2021
be quashed and set aside.
9. Because of the discussions made above, the orders dated
08.02.2023, 12.06.2023 & 17.01.2024, passed by the learned
Additional Sessions Judge-II, Hazaribagh by which respectively
the bailable warrant of arrest, non-bailable warrant of arrest and
the proclamation under Section 82 Cr.P.C. have been issued in
connection with Drugs and Cosmetics Case No. 03 of 2021 are
quashed and set aside.
10. The learned Additional Sessions Judge-II, Hazaribagh may pass
a fresh order in accordance with law.
11. This criminal miscellaneous petition is disposed of accordingly.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 18th September, 2024
AFR/Sonu-Gunjan/-
