Jharkhand High Court
Prabha Agarwal @ Prabha vs The State Of Jharkhand on 28 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.165 of 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 165 of 2024
1. Prabha Agarwal @ Prabha, aged about 40 years, wife of Praveen
Agarwal @ Praveen Kumar
2. Praveen Agarwal @ Praveen Kumar @ Parveen Kumar, aged about
42 years, son of Mahinder Kumar Agarwal
Both resident of Q. No.49A, Street No.87, P.O.-Chittaranjan, P.S.-
Chittaranjan, Phulijuri, Dist.-Barddhaman (West Bengal)
.... Petitioners
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Rohit Agarwal, 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 order dated 26.06.2019 and 06.01.2020 by which respectively, the order of non-bailable warrant of arrest and proclamation under Section 82 Cr.P.C. was issued by the learned Chief Judicial Magistrate, Seraikella in connection with Seraikella P.S. Case No. 21 of 2019.
3. The brief fact of the case is that on 26.06.2019, the I.O. of the case filed a petition with a prayer for issue of non-bailable warrant of arrest against the petitioners who are the accused persons of the case 2 Cr.M.P. No.165 of 2024 involving the offences punishable under Sections 406, 420, 467, 468, 471, 34 of Indian Penal Code and the learned Chief Judicial Magistrate, Seraikella issued non-bailable warrant of arrest without recording its satisfaction that the petitioners are evading arrest.
4. On 06.01.2020, the I.O. of the case filed a petition for issue of proclamation under Section 82 Cr.P.C. inter alia against the petitioners and the learned Chief Judicial Magistrate, Seraikella issued the proclamation under Section 82 Cr.P.C. without recording its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest and without fixing the time or place for appearance of the petitioners who are the accused persons of the case.
5. It is submitted by the learned counsel for the petitioners that the learned Chief Judicial Magistrate, Seraikella has committed illegality by issuing non-bailable warrant of arrest against the petitioners vide order dated 26.06.2019 without recording its satisfaction that the petitioners are evading their arrest. It is next submitted by the learned counsel for the petitioner that similarly the learned Chief Judicial Magistrate, Seraikella passed orders for issue of proclamation under Section 82 of Cr.P.C. vide order dated 06.01.2020 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. and without mentioning the time and place for appearance of the petitioners. Hence, it is submitted that orders dated 26.06.2019 and 06.01.2020 passed by the learned Chief Judicial Magistrate, Seraikella in connection with Seraikella P.S. Case No. 21 of 2019 be quashed and set aside. 3 Cr.M.P. No.165 of 2024
6. Learned Additional Public Prosecutor on the other hand opposes the prayer for quashing the orders dated 26.06.2019 and 06.01.2020 passed by the learned Chief Judicial Magistrate, Seraikella in connection with Seraikella P.S. Case No. 21 of 2019 and submits that non-bailable warrant of arrest and the proclamation under Section 82 Cr.P.C. itself shows that there were materials available in the record for the learned Chief Judicial Magistrate, Seraikella to be satisfied that there is justification for issuance of non-bailable warrant of arrest and proclamation under Section 82 Cr.P.C. Hence, it is 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, it is pertinent to mention here that Section 73 of the Code of Criminal Procedure empowers inter alia the Chief Judicial Magistrate to direct a warrant of arrest to any person within its jurisdiction for arrest of inter alia any person who is accused of non-bailable warrant of arrest and is evading arrest.
8. Now coming to the facts of the case undoubtedly, the petitioners are accused of committing non-bailable offence punishable under Sections 406, 420, 467, 468, 471, 34 of Indian Penal Code but there is no material in the record to suggest that they were evading their arrest and the learned Chief Judicial Magistrate, Seraikella before issuing the non-bailable warrant of arrest has also not mentioned that the petitioners are evading their arrest and without recording such satisfaction, the issuance of non-bailable warrant of arrest against the petitioners vide order dated 26.06.2019 passed by the learned Chief Judicial Magistrate, Seraikella in connection with 4 Cr.M.P. No.165 of 2024 Seraikella P.S. Case No. 21 of 2019 is not sustainable in law.
Accordingly, the same is quashed and set aside.
9. So far as the order dated 06.01.2020 is concerned, it is pertinent to mention here that 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 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 Chief Judicial Magistrate, Seraikella 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 who are the accused persons of this case, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Seraikella has committed 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 the continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 06.01.2020 passed by the learned Chief Judicial Magistrate, Seraikella in connection with Seraikella P.S. Case No. 21 of 2019 be quashed and set aside.
10. Accordingly, the order dated 06.01.2020 passed by the learned Chief Judicial Magistrate, Seraikella in connection with Seraikella P.S. Case No. 21 of 2019, is quashed and set aside. 5 Cr.M.P. No.165 of 2024
11. The learned Chief Judicial Magistrate, Seraikella may pass a fresh order in accordance with law.
12. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th February, 2024 AFR/Sonu-Gunjan/-