Jharkhand High Court
Kameshwar Singh vs The State Of Jharkhand on 10 December, 2014
Author: P.P. Bhatt
Bench: P.P. Bhatt
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2753 of 2014
Kameshwar Singh ....Petitioner
Versus
The State of Jharkhand ... Opposite Party
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Coram: THE HON'BLE MR JUSTICE P.P. BHATT
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For the Petitioner : M/s. P.S. Dayal, Sanjay Kumar &
Sanjeev Kumar Singh, Advocates
For the State : Mr. Pawan Kumar Choudhary, A.P.P.
/10.12.2014: Present criminal miscellaneous petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of orders dated 10.02.2014, 17.02.2014 and 08.07.2014 passed by learned Judicial Magistrate, 1st Class, Bermo at Tenughat in Gomia P.S. Case No. 186 of 2013, corresponding to G.R. Case No. 1358 of 2013 registered for the offences punishable under Sections 409/ 420/ 447 of the Indian Penal Code, whereby warrant of arrest, processes under Sections 82 and 83, Cr.P.C. respectively have been ordered to be issued against the petitioner, now pending before the learned Judicial Magistrate, 1st Class, Bermo at Tenughat.
2. Learned counsel for the petitioner, while referring Annexure-2 i.e. order-sheet, pointed out that FIR was received by the Court on 26.11.2013 and thereafter, it was sent to the Court of learned Judicial Magistrate, Tenughat awaiting final form. Thereafter on 27.11.2013, case record was received from the Court of learned ACJM, Tenughat by the Court of learned Judicial Magistrate, Tenughat and upon application filed by the IO for issuance of warrant of arrest against the petitioner-accused, learned court-below vide its order dated 10.02.2014, issued warrant of arrest against the petitioner. Thereafter on 17.02.2014, process under Section 82 of the Code of Criminal Procedure was ordered to be issued. It is also pointed that thereafter process under Section 83 of the Code of Criminal Procedure was ordered to be issued vide order dated 08.07.2014 without following due process of law.
3. According to the learned counsel for the petitioner, there is nothing on record to show that the petitioner was evading his arrest; however, learned court-below, without recording its any kind of satisfaction, straightaway issued warrant of arrest, which is contrary to the settled proposition of law.
4. Learned counsel for the petitioner adds further that the learned court-below has issued warrant of arrest and even process under Sections 82 and 83 of the Code of Criminal Procedure have been issued without receiving the service report of non-bailable warrant. From perusal of the copy of the order-sheet of the trial Court records (Annexure-2), it appears that no service report was received in respect of the summons issued and without being any report relating to execution of the warrant of arrest, process has been issued.
5. Learned counsel for the petitioner, in support of his submission, has referred to and relied upon the decision given in the case of Dr. Annapurna Kundu versus The State of Jharkhand, reported in 2014(3) JLJR 128. Learned counsel for the petitioner has also referred to and relied upon the decision given in the case of Umesh Kumar versus State of Jharkhand, reported in 2013(2) JLJR 362. It is pointed out that in the above referred two decisions, the decision given by the Hon'ble Apex Court in the case of Raghuvansh Dewanchand Bhasin versus State of Maharashtra and another, reported in (2012) 9 Supreme Court Cases 791 have been followed.
6. Learned A.P.P. appearing on behalf of the State, submitted that since the petitioner was evading his arrest, learned court- below, after receipt of the FIR in November, 2013, passed an order dated 10.02.2014 for issuance of warrant of arrest, as petitioner is the named accused in the FIR. Learned A.P.P. appearing on behalf of the State, tried to justify the order passed by the learned court-below in context with facts of the case and allegations levelled against the petitioner in FIR.
7. Learned counsel for the petitioner, in response to the above submissions made by the learned A.P.P., clarified that petitioner has preferred this criminal miscellaneous petition, under Section 482 of the Code of Criminal Procedure, challenging the legality and validity of the order dated 10.02.2014 and subsequent orders. It is also pointed out that anticipatory bail application filed by the petitioner is also pending but since processes under Sections 82 and 83 of the Code of Criminal Procedure have been issued against the petitioner, petitioner is not in a position to pursue with remedy and therefore, petitioner has approached this Court for quashing and setting aside the order regarding issuance of warrant of arrest and subsequent orders regarding issuance of process under Sections 82 and 83 of the Code of Criminal Procedure respectively.
8. Having regard to the above submissions and more particularly on perusal of the order dated 10.02.2014, it transpires that the said order is passed in clear contravention of the settled legal proposition, as it reflects from the order-sheet (Annexure-2) that FIR was received by the Court on 26.11.2013 and thereafter it was referred to the competent Court having jurisdiction and after receipt of the record on 27.11.2013 by the Court concerned, there is nothing on record to show that the petitioner was evading his arrest in connection with the alleged offence. Order-sheet clearly indicates that vide order dated 10.02.2014, upon application moved by the IO, straightaway warrant of arrest was ordered to be issued and thereafter within a week's time vide order dated 17.02.2014 process under Section 82 of the Code of Criminal Procedure and subsequently, vide order dated 08.07.2014, process under Section 83 of the Code of Criminal Procedure were ordered to be issued without following due process of law. Moreover, in view of the decisions cited by the learned counsel for the petitioner, proposition of law is well settled and it appears that said proposition of law has not been followed in the instant case by the learned court-below and therefore, in the light of the facts and circumstances, as discussed above, as also in view of the settled legal proposition, enumerated in the above-referred two decisions, this Court is of the view that orders passed by the learned court-below dated 10.02.2014, 17.02.2014 and 08.07.2014, passed by learned Judicial Magistrate, 1st Class, Bermo at Tenughat in Gomia P.S. Case No. 186 of 2013, corresponding to G.R. Case No. 1358 of 2013 registered for the offences punishable under Sections 409/ 420/ 447 of the Indian Penal Code is required to be set aside. Accordingly, the same are hereby ordered to be quashed and set aside and the matter is remitted to the learned court-below for its de novo consideration.
9. Accordingly, this criminal miscellaneous petition is allowed.
10. Let the order be communicated through FAX to the court concerned on the cost to be deposited by the learned counsel for the petitioner.
(P.P. Bhatt, J.) S.B.