Jharkhand High Court
Pokhan Sahu @ Pokhan Saw vs The State Of Jharkhand .... Opp. Party on 17 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2480 of 2024
1. Pokhan Sahu @ Pokhan Saw, aged about 50 years, S/o Nema Saw
2. Rajesh Saw @ Dhari Saw @ Rajesh Kumar Saw @ Dhari Saw
Both are same R/o -Tandwa, P.O.+P.S. -Tandwa, Distrcit -Chatra,
Jharkhand.
.... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Ajeet Kumar Singh, Advocate For the State : Mr. P.K. Chatterjee, Spl. 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 B.N.S.S., 2023 with a prayer to quash the orders dated 26.02.2018, 19.05.2018 and 24.09.2018 respectively whereby the non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. have been issued by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012 registered for the offence punishable under Section 414/34 of the Indian Penal Code and Section 30 of the Coal Mines Act as well as Section 33 of the Indian Forest Act. 1 Cr.M.P. No.2480 of 2024
3. The brief facts of the case is that on 26.02.2018, the witness of the prosecution was present but the petitioners who are the accused persons of the case did not take any step nor they were present before the court. Hence, the witness present has to be returned unexamined and as the petitioners being the accused persons of the case violated the terms and conditions of the bail bond, which required them to remain present on the date to which the case is fixed, the learned Additional Chief Judicial Magistrate, Ramgarh cancelled the bail granted to them and directed for issue of non-
bailable warrant of arrest. On though 19.05.2018, the execution report of the non-bailable warrant of arrest was not received still the learned Additional Chief Judicial Magistrate, Ramgarh issued the proclamation under Section 82 Cr.P.C. On 24.09.2018, though no report was received regarding the proclamation made under Section 82 Cr.P.C. but the learned Additional Chief Judicial Magistrate, Ramgarh ordered to issue the attachment order of the property of the petitioners under Section 83 Cr.P.C.
4. It is submitted by the learned counsel for the petitioners that the petitioners are innocent and the petitioners were granted bail on 10.01.2013. They continued on bail till 11.01.2018. It is next submitted by the learned counsel for the petitioners that no reasoned order was passed for cancelling the bail granted to the petitioners on 26.02.2018. It is next submitted that vide order dated 19.05.2018, the learned Additional Chief Judicial Magistrate, Ramgarh issued the proclamation under Section 82 Cr.P.C. 2 Cr.M.P. No.2480 of 2024 without following the due process of law and without recording the satisfaction that the petitioners are absconding or concealing themselves to evade their arrest, which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C.; that too without fixing any time and place for appearance of the petitioners who are the accused persons of the case. It is next submitted that vide order dated 24.09.2018, without any information available in the record, that the proclamation under Section 82 Cr.P.C. was ever made, the learned Additional Chief Judicial Magistrate, Ramgarh passed order for attachment of the property of the petitioners under Section 83 of Cr.P.C., without mentioning the property to be attached. Hence, it is submitted that the orders dated 26.02.2018, 19.05.2018 and 24.09.2018 passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012; being not in accordance with law, be quashed and set aside.
5. Learned Spl. P.P. appearing for the State vehemently opposes the prayer for quashing the said three orders. It is next submitted by the learned Spl. P.P. that there is no illegality in the order dated 26.02.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in the said case. It is next submitted by the learned Spl. P.P. that the bail granted to the accused do not confer unfettered right to the accused to not to appear before the court any further, rather in the bail bond itself the accused person and the sureties have undertaken that the accused person shall remain 3 Cr.M.P. No.2480 of 2024 present in court on each date, to which the case would be fixed by the court. It is then submitted that; non-appearance of the petitioners who are the accused persons of the said case and who were on bail and undertaking in their bail bonds to remain present on each of the dates, to which the case is fixed but avoiding examination of the witness who was present in the court and harassing the witness by not remaining present nor filing any petition for dispensing with their personal attendance through their lawyer, is itself a sufficient ground for cancellation of their bail and the same has been mentioned by the learned Additional Chief Judicial Magistrate, Ramgarh. It is next submitted by the learned Spl. P.P. that an accused on bail cannot take the liberty, not to remain present in court on the date fixed, without the permission of the court and if the accused for any reason is unable to remain present in the court, on the date fixed by his own arrangement, he has the choice of remaining in judicial custody. Then it will be upon the court to ensure his presence before it as and when desired by the court. It is next submitted that here, in this case, the petitioners want to have cake and eat it too. They want to remain on bail but want the liberty not to appear before the court as per their sweet will, on the date fixed by the court and to prolong the trial by harassing the witnesses by not taking any steps either for dispensing with their personal attendance or remaining present to ensure that the witness present is not turned back by the Court. It is next submitted that there is also no 4 Cr.M.P. No.2480 of 2024 illegality in the order dated 19.05.2018 & 24.09.2018 as the very fact that the learned Additional Chief Judicial Magistrate, Ramgarh has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself goes to show that there were sufficient materials available in the record for the learned Additional Chief Judicial Magistrate, Ramgarh to be satisfied that there is justification for issuance of such proclamation and order of attachment. Hence, it is submitted that this criminal miscellaneous petition, being without any merit, be dismissed.
6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that when an accused of a criminal case, is released on bail, such accused, has no choice for not appearing before the court which grants him bail, as per his sweet will, without the permission of the court in which the trial is going on. When an accused is produced before a court in a criminal case involving non-bailable offences, the accused is first remanded to judicial custody by the court. After such remand to judicial custody, the accused may pray for being released on bail and if the court which remands the accused to judicial custody; or any other court empowered under section 437 or 439 of the Code of Criminal Procedure; is satisfied that the accused will remain present in the court, in which his case is pending, and other attending considerations; on the prayer of the accused, releases the accused 5 Cr.M.P. No.2480 of 2024 on bail. After an accused is granted bail as such; by the order of the court, the accused furnishes a bail bond and in the bail bond the accused undertakes that he will appear before the court on each of the dates to which the case would be fixed in future. So, ordinarily the accused is expected to remain present in court on each of the dates to which the case is fixed. Of course, there is provision inter alia in Section 317 of the Cr.P.C. where the court can dispense with the personal attendance of the accused and proceed with such enquiry or trial in absence of the accused, if he is represented by his pleader. But in this case, even though the accused were on bail and the witness was present in the court for his examination, but the petitioners who are the accused persons of the case neither presented themselves before the court nor filed any petition to dispense with their personal appearance; even though indisputably the witness of the prosecution was present.
7. A criminal trial cannot take place in the absence of the accused person. It is common knowledge that an accused person of the case, if he knows that his conviction is imminent because the witnesses will support the case of prosecution; resorts to all kinds of tactics to delay the trial and to harass the witnesses by making them to come to the court again and again for recording of their evidence. The legislature, in its wisdom has not put any embargo on the court, for cancelling the bail granted to the accused persons for violating the conditions undertaken to be complied by him in the bail bond. So by way of a legal fiction, such an embargo 6 Cr.M.P. No.2480 of 2024 cannot be put upon the court, depriving the court of the power for cancelling the bail, once granted to the accused persons for violating the conditions of the bail bond. Hence, this Court is of the considered view that there is absolutely no illegality in the order dated 26.02.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012. Hence, the prayer to quash the said order is rejected.
8. So far as the order dated 19.05.2018 is concerned, it is a settled principle of law that the court which issues 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, Ramgarh has neither recorded its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest nor fixed any time or place for appearance of the petitioners, this Court has no hesitation in holding that the learned Additional Chief Judicial Magistrate, Ramgarh has committed grave illegality by issuing the said proclamation under Section 82 of Cr.P.C. 7 Cr.M.P. No.2480 of 2024 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. Therefore, the order dated 19.05.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012 is quashed and set aside.
9. So far as the order dated 24.09.2018 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, 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, Ramgarh committed illegality by passing the order of attachment of property of the petitioners without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing such an order of attachment. Hence, under such circumstances, this Court has no hesitation in holding that the order dated 24.09.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012 is also not in accordance with law and continuation of the same will 8 Cr.M.P. No.2480 of 2024 amount to abuse of process of law. Therefore, this is a fit case where the order dated 24.09.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012 be quashed and set aside.
10. Accordingly, the order dated 24.09.2018, passed by the learned Additional Chief Judicial Magistrate, Ramgarh in connection with Mandu P.S. Case No. 275 of 2012 corresponding to G.R. Case No. 4284 of 2012 is quashed and set aside.
11. The learned Additional Chief Judicial Magistrate, Ramgarh, may pass a fresh order in accordance with law.
12. This criminal miscellaneous petition is allowed to the aforesaid extent only.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 17th September, 2024 AFR/Sonu-Gunjan/-
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