Jharkhand High Court
Ajay Kundu @ Ajay @ Ajay Kumar vs The State Of Jharkhand .... Opp. Party on 8 April, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 117 of 2023
1. Ajay Kundu @ Ajay @ Ajay Kumar, aged about 30 years, son of
Samesher Singh Kundu;
2. Samesher Singh Kundu, aged about 60 years, son of Late Jaikaran
Kundu;
Both are resident of village -Kinala, P.O. & P.S. -Uklana, District Hisar,
State -Haryana.
.... Petitioners
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Amitesh Kumar Geasen, Advocate For the State : Mr. Abhay Kr. Tiwari, 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 482 Cr.P.C. with a prayer to quash the entire criminal proceeding initiated against the petitioners in connection with Bagodar P.S. Case No. 139 of 2013, corresponding to G.R. Case No. 906 of 2013 registered for the offences punishable under Section 406/420 of the Indian Penal Code as also the order dated 05.12.2022, passed by the Judicial Magistrate -1st Class, Giridih by which proclamation under Section 82 Cr.P.C. has been issued and 1 Cr.M.P. No.117 of 2023 the order dated 21.01.2023 whereby the order for attachment of the property of the petitioners has been issued.
3. It is submitted by the learned counsel for the petitioners that the petitioners do not press the prayer to quash the entire criminal proceeding and confine their prayer only to quash the orders dated 05.12.2022 and 21.01.2023, passed by the Judicial Magistrate -1st Class, Giridih, in connection with the said Bagodar P.S. Case No. 139 of 2013, corresponding to G.R. Case No. 906 of 2013.
4. Accordingly, the prayer to quash the entire criminal proceeding initiated against the petitioners in connection with Bagodar P.S. Case No. 139 of 2013, corresponding to G.R. Case No. 906 of 2013 registered for the offences punishable under Section 406/420 of the Indian Penal Code is rejected as not pressed.
5. It is submitted by the learned counsel for the petitioners that the allegation against the petitioners is that the petitioners have committed cheating and criminal breach of trust by defrauding Rs.2,50,000/-. It is then submitted that the allegation against the petitioners is false. The present case was instituted in the year 2013 but suddenly on 27.10.2022, the I.O. of the case issued a notice under Section 41A of the Code of Criminal Procedure against the petitioners directing them to appear before him or before the court below. It is next submitted that the proclamation under Section 82 Cr.P.C. has been issued without following the mandatory requirement of law. It is next submitted that the proclamation under Section 82 Cr.P.C. was issued even though neither any bailable warrant or arrest nor any non-bailable warrant of arrest was issued 2 Cr.M.P. No.117 of 2023 against the petitioners. It is then submitted that in the proclamation order, the time and place of occurrence has not been mentioned. It is next submitted that the order for attachment of the property of the petitioners dated 21.01.2023 is also not sustainable in law as the same has been passed without following the mandatory requirement of law. Drawing attention of this Court to the supplementary affidavit dated 16.12.2023, it is submitted by the learned counsel for the petitioners that after issuance of the attachment order of the property of the petitioner, fourteen number of different properties has been attached on 26.01.2023. The learned counsel for the petitioners submits that he has no information as to during this period of over more than a year, whether the property attached has already been sold and if, it has been sold, to whom it has been sold. Hence, it is submitted that the orders dated 05.12.2022 and 21.01.2023, passed by the Judicial Magistrate -1st Class, Giridih, in connection with the said Bagodar P.S. Case No. 139 of 2013, corresponding to G.R. Case No. 906 of 2013 be quashed and set aside.
6. It is submitted by the learned Addl. P.P. that the prayer of the petitioner has become infructuous as consequent upon the issue of proclamation under Section 82 Cr.P.C. vide order dated 05.12.2022, wherein the learned Judicial Magistrate -1st Class, Giridih has taken note of the fact that though notice under Section 41 A of the Code of Criminal Procedure was served upon the petitioners personally, first by tendering the same which was refused by the residents of their house and then by sending the same through Speed Post but the petitioners having not responded to the same and they are evading 3 Cr.M.P. No.117 of 2023 their arrest and the learned trial court has considered that the I.O. of the case on three different occasions as mentioned in para -119, 127 and 135 of the case diary attempted to arrest the petitioners by conducting successive raids at their residence as mentioned in the case diary but even then, they evaded service of notice. Hence, thus being satisfied that the petitioners are absconding from their house to evade execution of non-bailable warrant of arrest against them, the proclamation under Section 82 Cr.P.C. has been made. It is next submitted that prior to that warrant of arrest was issued against the petitioners vide order dated 18.11.2022. So it is fallacious on the part of the petitioners to claim that non-bailable warrant of arrest has never been issued against them before the proclamation under Section 82 Cr.P.C. was made. It is next submitted by the learned Addl. P.P. that admittedly consequent upon the proclamation under Section 82 Cr.P.C.; about which the petitioners were very much aware, they never appeared before the trial court and the order of attachment of their properties was also made and the same has admittedly been attached, so the prayer of the petitioners has become infructuous. Hence, it is submitted that there being no illegality in the order passed by the learned trial court, the only option left with the petitioners is to appear before the court below and make prayer in terms of Section 85 of the Code of Criminal Procedure and the criminal miscellaneous petition is not a substitute to avoid appearance in the trial court for which there is provisions in Section 85 of the Code of Criminal Procedure. Therefore, it is 4 Cr.M.P. No.117 of 2023 submitted that this criminal miscellaneous petition being without any merit be dismissed.
7. Having heard the submissions made at the Bar and after going through the materials in the record, the undisputed fact remains that the petitioner was very much aware about the proclamation issued by the Judicial Magistrate -1st Class, Giridih in Bagodar P.S. Case No. 139 of 2013 on 05.12.2022. The contention of the petitioners that the learned trial court never issued any warrant of arrest against them prior to issuing of the proclamation under Section 82 Cr.P.C. is out and out false and contrary to the materials available in the record as page nos. 61-62 of the consolidated criminal miscellaneous petition very much reveals that vide order dated 18.11.2022, the warrant of arrest against the petitioners was issued. Knowing the same pretty well, it is surprising that the petitioners have got a false affidavit sworn by their Pairvikar by making averments in para -23 of this consolidated criminal miscellaneous petition filed on 16.12.2023 by making the averment that neither bailable warrant of arrest nor any non-bailable warrant of arrest was ever issued against the petitioners before the proclamation under Section 82 Cr.P.C. was made. So the main contention of the petitioners for quashing the proclamation under Section 82 Cr.P.C. turned out fallacious. The other ground that the date, time and place for appearance of the petitioners has not been mentioned in the proclamation order is concerned, perusal of the record reveals that the petitioner was very much aware about the proclamation made under Section 82 Cr.P.C. After the proclamation under Section 82 Cr.P.C., the order of attachment under Section 83 5 Cr.M.P. No.117 of 2023 Cr.P.C. has already been made. Perusal of the order dated 21.01.2023, passed by the learned Judicial Magistrate -1st Class, Giridih in Bagodar P.S. Case No. 139 of 2013 reveals that the proclamation under Section 82 Cr.P.C. was duly affixed on 18.12.2022 on the wall of the main gate of the accused in presence of the witnesses whose names has been mentioned in the service report but even after thirty days has elapsed, the petitioners did not appear before the learned Judicial Magistrate -1st Class, Giridih and consequent upon that, the property has been attached at the place of residence of the petitioners in the District of Hisar in the State of Haryana. There is no illegality in the order dated 21.01.2023 by which the attachment order has been passed and consequent upon which police has attached the property of the petitioners.
8. Under such circumstances, consequent upon the attachment of the property of the petitioners having been made, the proclamation under Section 82 Cr.P.C. has lost its force and effect and considering the fact that the petitioners even though were very much aware about the warrant of arrest issued against them as well as the proclamation under Section 82 Cr.P.C. has been issued against them, have still chose not to appear in the court concerned and failed to submit themselves to the jurisdiction of the court in a case which is admittedly more than a decade old, this Court is of the considered view that mere non-mentioning of the time and place of appearance in the order of proclamation which has otherwise lost its force and effect will be too technical view to quash the said order dated 6 Cr.M.P. No.117 of 2023 05.12.2022, passed by the learned Judicial Magistrate -1st Class in connection with Bagodar P.S. Case No. 139 of 2013.
9. As already indicated above, there being no illegality in the order dated 21.01.2023, this Court is not inclined to interfere with the same more so when the same has also been acted upon and the property of the petitioners have already been attached and the petitioners have the remedy under Section 85 of the Code of Criminal Procedure to pray for release of their property upon appearing in the court concerned before six months of the date of attachment as the property attached appears to be not subject to speedy and natural decaying nor there is any reason to believe that the sale of the attached property to be for the benefit of the owner.
10. Accordingly, this criminal miscellaneous petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th April, 2024 AFR/Sonu-Gunjan/-
7 Cr.M.P. No.117 of 2023