Jharkhand High Court
Kishun Gope vs The State Of Jharkhand on 28 January, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 1064 of 2023
Kishun Gope, S/o Late Sh. Raghunath Gope, aged about 59
years, Permanent Residence at Village Sasia, P.S. -Basia, Post -
Itam, District -Gumla
.... Petitioner
Versus
1. The State of Jharkhand
2. The Director General of Police, Police Head Quarter, Project
Building, P.O.+P.S. -Dhurwa, Dist -Ranchi, Jharkhand.
3. The Superintendent of Police, Simdega, P.O.+P.S.+Dist -
Simdega, Jharkhand
4. The Officer-in-Charge, Simdega, P.O.+P.S.+District -Simdega,
Jharkhand.
.... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. L.K. Passi, Advocate
: Mr. Rama Nand Ram, Advocate
: Mr. Nagendra Tiwari, Advocate
: Ms. Ruby, Advocate
For the State : Mr. Manoj Kumar, G.A.-III
: Mr. Deepankar, AC to G.A.-III
.....
By the Court:-
1. Heard the parties.
2. This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 and 227 of the Constitution of India with a prayer to quash the order dated 25.06.2014, whereby and where under the learned S.D.J.M., Simdega directed for issuance of proclamation under Section 82 of Cr.P.C. against the petitioner in W.P. (Cr.) No.1064 of 2023 1 connection with Kurdeg P.S. Case No. 02 of 2011 and order dated 08.08.2014 directing for registration of F.I.R., the charge sheet and the entire criminal proceeding arising out of that F.I.R. being Simdega P.S. Case No.106 of 2014 registered involving the offence punishable under Section 174A of the Indian Penal Code corresponding to G.R. Case No. 309 of 2014.
3. The brief fact of the case is that the petitioner was the informant of Kurdeg P.S. Case No. 02 of 2011 in which case, after investigation, police submitted charge sheet and cited the petitioner as a witness. The petitioner during the trial of G.R. Case No. 37 of 2011 filed a petition before the trial court being the court of Sub Divisional Judicial Magistrate, Simdega that for effective prosecution of the said case, the Gram Sabha Register of the Panchayat Barki Beura, in connection with Revenue Village Barki Beura be called for. On the same day, the learned Sub Divisional Judicial Magistrate, Simdega in the order sheet of the said G.R. Case No. 37 of 2011 mentioned the filing of such petition in the order sheet but the learned Sub Divisional Judicial Magistrate, Simdega has not passed any order either allowing or rejecting the said petition and only ordered that the same be kept in the record. The learned Sub Divisional Judicial Magistrate, Simdega though knowing pretty well that the informant-witness -Kishun Gope was present in the court on 20.02.2014, mentioned that no witness is present and fixed the case to 31.03.2014. On 31.03.2014, the learned Sub Divisional Judicial Magistrate, Simdega was on leave. The case was next fixed to 17.05.2014. On 17.05.2014 as no witness W.P. (Cr.) No.1064 of 2023 2 was present, hence the learned Sub Divisional Judicial Magistrate, Simdega directed the office clerk to issue non-bailable warrant of arrest inter-alia against the petitioner and directed to fix the case on 25.06.2014. On 25.06.2014, a petition was filed by the wife of the petitioner- namely Sunita Devi who was also the witness no.2 in the charge sheet but no-one turned up to press the petition. Without any execution report of the non-bailable warrant of arrest issued against the petitioner, the learned Sub Divisional Judicial Magistrate, Simdega ordered to issue the proclamation under Section 82 of Cr.P.C. without mentioning any time or place for their appearance but only mentioned the date of their appearance to be 08.08.2014. On 08.08.2014, the learned Sub Divisional Judicial Magistrate, Simdega mentioned in the order sheet that the petitioner and his wife were aware that they have to adduce evidence in G.R. Case No. 37 of 2011. Non-bailable warrant of arrest has been issued against them, they were aware about the same, but even after that as they did not appear before the court, hence ordered for registration of an F.I.R. alleging commission of the offence punishable under Section 174A of the Indian Penal Code by the petitioner. Basing upon the same, Simdega P.S. Case No. 106 of 2014 was registered and police took up investigation of the case, submitted charge sheet, cognizance has been taken and in that case also, the petitioner has been declared absconder and permanent warrant of arrest has also been issued against the petitioner of this writ petition. So far as the G.R. Case No. 37 of 2011 is concerned, the same has been disposed of vide judgment W.P. (Cr.) No.1064 of 2023 3 dated 03.05.2016. In that case, six prosecution witnesses were examined but two accused persons of that case namely Subedar Singh and Visheshwar Yadav have been acquitted.
4. It is submitted by the learned counsel for the petitioner drawing attention of this Court to Section 174A of the Indian Penal Code which reads as under:-
174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
That the condition precedent to constitute the said offence is that the person who is supposed to appear at the specified place and specified time required by a proclamation proposed under Section 82(1) of the Code of Criminal Procedure but he fails to appear as such, then the offence punishable under Section 174A of the Indian Penal Code is made out.
5. It is then submitted by the learned counsel for the petitioner drawing attention of this Court to the copy of the order sheet of G.R. Case No. 37 of 2011 filed in this writ petition that admittedly the petitioner and his wife were the witnesses of the case and they were appearing in the court during the trial, so if at all the learned trial court intended to examine them as witnesses then it was incumbent upon the trial court to issue notice to them but without issuing any notice to the petitioner and his wife to appear before W.P. (Cr.) No.1064 of 2023 4 the court for recording of their deposition as a witness in the case, the learned Sub Divisional Judicial Magistrate has committed a grave error by straight away directing issuance of non-bailable warrant of arrest against the petitioner vide order dated 17.05.2014 in the said G.R. Case No. 37 of 2011. It is next submitted that the learned Sub Divisional Judicial Magistrate, Simdega has also committed another grave illegality by issuing the proclamation under Section 82 of Cr.P.C. vide order dated 25.06.2014 even though no execution report of non-bailable warrant of arrest was available in the record and there was no material available in the record to suggest that the petitioner and his wife were absconding or concealing themselves to evade their arrest which is a sine-qua-non for issuing the proclamation under Section 82 of Cr.P.C. It is next submitted that issuance of the proclamation under Section 82 of Cr.P.C. without fixing time and place for appearance of the petitioner is also bad in law. It is then submitted that the order dated 08.08.2014 by which the learned Sub Divisional Judicial Magistrate, Simdega has ordered for writing a letter to the Officer-in-Charge of Simdega Police Station for registration of the F.I.R. did not contain the fact that the petitioner failed to appear at the specified place and specified time as required for any valid proclamation under Section 82 of Cr.P.C. Hence, it is submitted that the order dated 08.08.2014 to the extent of writing letter to the Officer-in-Charge of Simdega Police Station for registration of F.I.R. involving the offence punishable under Section 174A of the Indian Penal Code is not sustainable in law W.P. (Cr.) No.1064 of 2023 5 and the continuation of the criminal proceeding based on such F.I.R. which has been numbered as Simdega P.S. Case No. 106 of 2014 will amount to abuse of process of law. Hence, it is submitted that the prayer as prayed for in this writ petition be allowed.
6. The learned counsel for the Respondent-State on the other hand submits that in the order dated 25.06.2014 in G.R. Case No. 37 of 2011, the learned Sub Divisional Judicial Magistrate, Simdega has fixed the date for appearance of the petitioner as 08.08.2014 and the obvious corollary is that the petitioner and his wife were to appear before the court concerned on 08.08.2014 during court hours. So, the same amounts to the sufficient compliance of Section 82(1) of Cr.P.C. but even knowing pretty well about the same, the petitioner having not complied with the direction for appearance before the court of learned Sub Divisional Judicial Magistrate, Simdega, so no illegality has been committed by the learned Sub Divisional Judicial Magistrate, Simdega in directing for registration of the F.I.R. It is then submitted that the misconduct of the petitioner and his wife continued in Simdega P.S. Case No. 106 of 2014 also and they did not cooperate in the said case as well and after investigation of the case, the allegation against the petitioner and his wife was found to be true and charge sheet has been submitted but even after the submission of the charge sheet, as they they did not appear even though non- bailable warrant of arrest was issued against them in Simdega P.S. Case No. 106 of 2014 as well and subsequently proclamation under Section 82 of Cr.P.C. and process under Section 83 of W.P. (Cr.) No.1064 of 2023 6 Cr.P.C. were also issued and as they did not appear and permanent warrant of arrest has also been issued against them, hence it is submitted that keeping in view the conduct of the petitioner, the prayer as prayed for in this writ petition ought not to be allowed and this writ petition being without any merit be dismissed.
7. Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that so far as the order dated 25.06.2014, passed in G.R. Case No. 37 of 2011 is concerned, by now it is a settled principle of law that the court which intends to issue the proclamation under Section 82 of Cr.P.C. must record its satisfaction that the person concerned in respect of whom the proclamation under Section 82 Cr.P.C. is to be issued is absconding or concealing himself to evade his arrest and after recording such satisfaction, in the order itself, it must fix the time and place for appearance of the person concerned.
8. Now coming to the facts of the case, the undisputed fact remains that even though the petitioner is an informant and witness of G.R. Case No. 37 of 2011 and he was present in the court of learned Sub Divisional Judicial Magistrate, Simdega in G.R. Case No. 37 of 2011 on 20.02.2014, the learned Sub Divisional Judicial Magistrate, Simdega for reasons best known to him, did not give any direction to the petitioner to appear in the court for recording his evidence as a witness nor any separate summon has been issued to him to appear as a witness. Without that, certainly the W.P. (Cr.) No.1064 of 2023 7 learned Sub Divisional Judicial Magistrate, Simdega has committed a grave illegality by straight away issuing the non- bailable warrant of arrest on 17.05.2014. Hence, this Court has no hesitation in holding that such issuance of non-bailable warrant of arrest against the petitioner and his wife is not sustainable in law.
9. So far as the order dated 25.06.2014, so far it relates to issuing the proclamation under Section 82 of Cr.P.C. is concerned, the same is also not sustainable in law because the learned Sub Divisional Judicial Magistrate, Simdega has failed to record any satisfaction that the petitioner and his wife were absconding or concealing themselves to evade their arrest and the learned Sub Divisional Judicial Magistrate, Simdega has failed to fix any time and place for their appearance in the order itself. Therefore, the same is also not sustainable in law.
10. Accordingly, the order dated 25.06.2014, whereby and where under the learned S.D.J.M., Simdega directed for issuance of proclamation under Section 82 of Cr.P.C. against the petitioner in connection with Kurdeg P.S. Case No. 02 of 2011 is quashed and set aside.
11. Now coming to the order dated 08.08.2014, it is pertinent to mention here that there is no satisfaction recorded in the said order by the learned Sub Divisional Judicial Magistrate, Simdega that the petitioner and his wife failed to appear at any specified place and specified time required by any proclamation under Section 82(1) of Cr.P.C. He has only mentioned that knowing pretty well that non-bailable warrant of arrest and proclamation W.P. (Cr.) No.1064 of 2023 8 has been issued against them, the petitioner and his wife have not appeared. So, in the absence of any essential ingredients to constitute the offence punishable under Section 174A of the Indian Penal Code that there must be a specified place and specified time where the person concerned was required to appear but fails to appear, the order dated 08.08.2014 is also not sustainable in law.
12. Accordingly, the order dated 08.08.2014 directing for registration of F.I.R. being Simdega P.S. Case No. 106 of 2014 is quashed and set aside.
13. Consequently, the F.I.R. vide Simdega P.S. Case No. 106 of 2014 which has been registered on the basis of the said order dated 08.08.2014 is also not sustainable in law and consequently the entire criminal proceedings of the said Simdega P.S. Case No. 106 of 2014 is also not sustainable in law and continuation of said criminal proceeding vide Simdega P.S. Case No. 106 of 2014 will amount to abuse of process of law.
14. Accordingly, the F.I.R. as well as the entire criminal proceeding of Simdega P.S. Case No. 106 of 2014 is quashed and set aside.
15. This writ petition is disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th January, 2025 AFR/Sonu-Gunjan/-
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