Jharkhand High Court
Alok Prafull Ekka vs The State Of Jharkhand on 28 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.546 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.546 of 2021
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Alok Prafull Ekka, aged about 32 years, son of Junas Ekka, resident of H-516 A, Ground Floor, Ansal Palam Vihar, P.O. & P.S.-Palam Vihar, Dist.-Gurugram (Haryana) ... Petitioner Versus
1. The State of Jharkhand
2. Eugine Jestine Ekka, son of late James Ekka, resident of Punjabi Line, Makadampur, P.O.-Tatanagar, P.S.-Parsudih, Town- Jamshedpur, Dist.-East Singhbhum-831002. ... Opposite Parties
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For the Petitioner : Mr. Akchansh Kishore, Advocate
: Mr. Komal Tiwary, Advocate
: Mr. Piyush, Advocate
: Mr. Hemant Jain, Advocate
For the State : Mr. Naveen Kr. Gaunjhu, Addl. P.P.
For O.P. No.2 : Mr. Rohit Agarwal, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 28.05.2019 passed by the learned Judicial Magistrate 1st Class, Jamshedpur; orders dated 20.02.2020 and 19.10.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur whereby and where under non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. respectively has been passed in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020.
3. In this case, further prayer has been made to quash the order dated 13.01.2021 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur 1 Cr. M.P. No.546 of 2021 dismissing the Criminal Revision No. 02 of 2021 filed against the order dated 20.02.2020 by which the proclamation under Section 82 Cr.P.C. was issued.
4. The brief fact of the case is that on 28.05.2019, the I.O. of the case filed an application with a prayer to issue warrant of arrest against the petitioner who is the accused person of the case involving the offences punishable under Sections 406 and 420 of Indian Penal Code. The learned Judicial Magistrate 1st Class, Jamshedpur without recording its satisfaction that the petitioner is evading his arrest directed issue of warrant of arrest. On 20.02.2020, on being informed that the warrant of arrest could not be executed upon the petitioner as the petitioner was evading his arrest on three different dates which has been mentioned in the order concerned when police raided his house and the learned Additional Chief Judicial Magistrate, Jamshedpur issued the proclamation under Section 82 Cr.P.C. On 19.10.2020, the I.O. of the case filed a requisition to issue process under Section 83 Cr.P.C. against the accused and the same was issued. In the order dated 13.01.2021 in Criminal Revision No. 02 of 2021, the learned Sessions Judge, East Singhbhum, Jamshedpur observed that there is sufficient compliance of the provision of Section 82 Cr.P.C. and dismissed the revision.
5. It is submitted by the learned counsel for the petitioner that on 28.05.2019, the learned Judicial Magistrate 1st Class, Jamshedpur issued warrant of arrest only on the ground that the petitioner is wanted in the case as he is named in the FIR without recording any satisfaction that the petitioner is evading his arrest.
6. So far as the order dated 20.02.2020 in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020 and order dated 13.01.2021 in Criminal Revision No. 02 of 2021 is concerned, it is submitted by the learned counsel for the petitioner that proclamation under Section 82 Cr.P.C. has been issued vide order dated 20.02.2020 without following the due 2 Cr. M.P. No.546 of 2021 process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. and the learned Sessions Judge, East Singhbhum, Jamshedpur has failed to consider the illegality committed by the learned trial court and has wrongly held that there is sufficient compliance for issuing proclamation under Section 82 Cr.P.C.
7. So far as the order dated 19.10.2020 is concerned, it is submitted by the learned counsel for the petitioner that the learned Additional Chief Judicial Magistrate, Jamshedpur has committed a grave illegality by without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, passed order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the order dated 19.10.2020 being not in accordance with law, the same be quashed and set aside.
8. In support of his contention, learned counsel for the petitioner relied upon the judgment of this Court in the case of Sunil Kumar vs. State of Jharkhand reported in 2023 SCC OnLine Jhar 1799, in the case of Chinta Devi vs. State of Jharkhand reported in 2023 SCC OnLine Jhar 2760 and in the case of Rahul Kumar Rai vs. State of Jharkhand reported in 2023 SCC OnLine Jhar 2261. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.
9. Learned Addl. P.P. appearing for the State and the learned counsel for the opposite party no.2 vehemently opposes the prayer for quashing the order dated 28.05.2019 passed by the learned Judicial Magistrate 1st Class, Jamshedpur, orders dated 20.02.2020 and 19.10.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur and submits that the very fact that the learned Magistrate has issued the warrant of arrest, proclamation 3 Cr. M.P. No.546 of 2021 under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Magistrate to be satisfied that there is justification for issuance of such warrant of arrest, proclamation and proceeding. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that Section 73 of the Code of Criminal Procedure empowers inter alia a Judicial Magistrate to direct a warrant of arrest to any person within its jurisdiction for arrest of inter alia of any person who is accused of non-bailable warrant of arrest and is evading arrest.
11. Now coming to the facts of the case, no doubt, the petitioner is an accused of committing non-bailable offences punishable under Section 406 and 420 of Indian Penal Code but there was absolutely no material in the record that the petitioner is evading his arrest by the time the learned Judicial Magistrate, passed the order for issuing of non-bailable warrant of arrest nor the Judicial Magistrate has indicated anything to suggest that the petitioner was evading the arrest. Under such circumstances, this Court has no hesitation in holding that the order dated 28.05.2019 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020 is not sustainable in law. Accordingly, the same is quashed and set aside.
12. So far as the order dated 20.02.2020 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 4 Cr. M.P. No.546 of 2021 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, Jamshedpur has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the learned Additional Chief Judicial Magistrate, Jamshedpur 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 20.02.2020 be quashed and set aside. Accordingly, the order dated 20.02.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020, is quashed and set aside.
13. For the reason mentioned above, the order dated 13.01.2021 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur passed in Criminal Revision No. 02 of 2021 having been passed ignoring the settled principle of law, the said order dated 13.01.2021 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur passed in Criminal Revision No. 02 of 2021 is also not sustainable in law and the same is also quashed and set aside.
14. So far as the order dated 19.10.2020 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, may 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 5 Cr. M.P. No.546 of 2021 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, Jamshedpur committed illegality by passing the order of attachment of property of the petitioner without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing such order of attachment. Hence, under such circumstances, this Court has no hesitation in holding that the order dated 19.10.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020 is also not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 19.10.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020, be quashed and set aside.
15. Accordingly, the order dated 19.10.2020 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur in connection with Parsudih P.S. Case No. 294 of 2018, corresponding to G.R. No. 1921 of 2020, is quashed and set aside.
16. The learned Magistrate may pass a fresh order in accordance with law.
17. In view of the disposal of this Criminal Miscellaneous Petition; the interim order is if any, passed in this case stands vacated. Registry to intimate the court concerned forthwith.
18. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th February, 2024 AFR/ Sonu-Gunjan/-
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