Jharkhand High Court
Mamta Devi @ Mamta Kumari vs The State Of Jharkhand ........... Opp. ... on 24 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No. 266 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 266 of 2021
Mamta Devi @ Mamta Kumari, aged about 25 years, wife of
Sunil Kumar, resident of village- Amnari, P.O. + P.S.- Muffasil,
District- Hazaribag ....... Petitioner
Versus
The State of Jharkhand ........... Opp. Party
For the Petitioner : Mr. Pratik Sen, Adv.
For the State : Ms. Amrita Kumari, Addl.PP
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 Cr.P.C., to quash the three orders in connection with the Muffasil P.S. case no. 257 of 2018 registered for the offences punishable under Section 366A/363 of the IPC and Section 8 and 12 of the POCSO Act being the order dated 18.08.2020 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag whereby and where under, learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag has directed for issue of non- bailable warrant of arrest against the petitioner, the order dated 09.12.2020 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag whereby and where under, learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has directed for issue of proclamation under Section 82 of Cr.P.C and the order dated 07.01.2021 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag whereby and where under, learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has 2 Cr.M.P. No. 266 of 2021 handed over the proclamation under Section 82 of Cr.P.C, which was allowed on 09.12.2020 to the I.O. of the case on 07.01.2021.
3. The brief fact of the case is that the petitioner is not named as an accused of the case. On 18.08.2020, the I.O. of the case submitted a requisition for issue of warrant of arrest against the petitioner, for the requirement for further investigation in the case. Learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag, allowed the prayer of the I.O. of the case and issued non-bailable warrant of arrest on 18.08.2020. The I.O. of the case, then, intimated that the petitioner is absconding, hence, learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag, issued the proclamation under Section 82 of Cr.P.C on 09.12.2020 and as the said proclamation was not taken by the I.O. on 07.01.2021, a fresh application has been made by the new I.O. of the case to take the said proclamation under Section 82 of CrPC, learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag, allowed the same.
4. Learned counsel for the petitioner by relying upon the judgment of this court in the case of Sheela Kumari & Ors. vs. State of Jharkhand through Vigilance Bureau reported in 2020 SCC Online Jhar 1286, and Section 73 of Cr.P.C which reads as under :-
"73. Warrant may be directed to any person.--(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict,proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71"
submits that admittedly, as the petitioner in this case has neither escaped nor proclaimed offender and only way, the warrant of arrest could have been directed against the petitioner is by recording the satisfaction that the petitioner is accused of a non- bailable offence and also that she is evading her arrest, by learned 3 Cr.M.P. No. 266 of 2021 Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag.
5. It is next submitted by learned counsel for the petitioner that learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag has not recorded any such satisfaction that the petitioner is evading her arrest but still it has issued the warrant of arrest against her illegally. Relying upon the judgment of the Hon'ble Supreme Court of India in the case of State through CBI vs. Dawood Ibrahim Kaskar & Others reported in (2000) 10 SCC 438, it is submitted by learned counsel for the petitioner that the power of issuing warrant of arrest of an accused person of the case, has not been conferred upon the court, to aid the police in investigation.
6. Learned counsel for the petitioner submits by relying upon the judgment of a co-ordinate Bench of this Court in the case of Md. Safiullah & Anr. vs. The State of Jharkhand & Anr. reported in 2015 SCC Online Jhar 3960, wherein the Co-ordinate Bench has observed that Section 73 of Cr.P.C, requires that the court which, issues the warrant of arrest against any person, must give reason before issuance of warrant of arrest against any person and this observation was made by relying upon the judgment of the Hon'ble Supreme court of India in the case of State through CBI vs. Dawood Ibrahim Kaskar & Ors. (supra), hence, it is submitted that the order date 18.08.2020 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag by which the warrant of arrest has been issued against the petitioner is bad in law being not sustainable and same be quashed and set aside.
7. So far as the order dated 09.12.2020 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag is concerned, it is submitted by learned counsel for the petitioner that learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has issued proclamation under Section 82 of Cr.P.C without following the due process of law and without recording any satisfaction as to whether the petitioner is 4 Cr.M.P. No. 266 of 2021 absconding or concealing himself to evade her arrest which is a sine qua non for issuing the proclamation under Section 82 of Cr.P.C and without fixing the time and place for the petitioner to appear and the order dated 09.12.2020 itself being illegal and not sustainable in law and the consequential order dated 07.01.2021, by which, the proclamation has been handed over to the I.O. of the case, is also bad in law, as the illegal proclamation under Section 82 of Cr.P.C, ought not have been handed over to the I.O. of the case, by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag, hence, it is submitted that both the orders dated 09.12.2020 and 07.01.2021, passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag be also quashed and set aside.
8. Learned Addl. P.P. for the State on the other hand, vehemently oppose the prayer for quashing the said three orders dated 18.08.2020 09.12.2020 and 07.01.2021, passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag and submits that very fact, that the learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has passed the order for issue of non-bailable warrant of arrest, the proclamation under Section 82 of Cr.P.C, itself shows that there were sufficient materials available in the record for the learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag to be satisfied that there is justification for issuance of such proclamation and the proclamation has been validly and legally issued and there is no illegality in the order dated 07.01.2021 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag , hence, it is submitted that this criminal miscellaneous petition being without any merit, be dismissed.
9. 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 as has rightly been submitted by learned counsel for the petitioner that learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has not 5 Cr.M.P. No. 266 of 2021 assigned any reason, as to why it has issued the non-bailable warrant of arrest. Learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag in the order dated 18.08.2020, has not mentioned that the petitioner is evading her arrest which makes it crystal clear that learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has not expressed subjective satisfaction regarding the essential ingredients required under Section 73 of the Cr.P.C, for directing warrant of arrest of the petitioner. It is a settled principle of law, that issuance of non-bailable warrant of arrest involves interference with personal liberty and arrest and imprisonment means deprivation of most precious right of an individual, therefore, the courts have to be extremely careful, for issuing the non-bailable warrant of arrest, as has been held by the Hon'ble Supreme court of India in the case of Inder Mohan Goswami & Another vs State Of Uttaranchal & Others reported in 2007 12 SCC 1. As the learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has not recorded any subjective satisfaction regarding the existence of the essential ingredients for issuing non-bailable warrant of arrest that the petitioner is evading her arrest and without any compliance with such essential ingredients, has ordered for issue of non-bailable warrant hence, the order dated 18.08.2020 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag, is not sustainable in law, accordingly, the same is quashed and set aside.
10. So far as the order dated 09.12.2020 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag, is concerned, 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 6 Cr.M.P. No. 266 of 2021 order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As after carefully going through the order dated 09.12.2020 passed by the learned Additional Sessions Judge-I- cum- Special Judge, POCSO Act, Hazaribag, it is found that learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag, has neither recorded its satisfaction that the petitioner is absconding or concealing herself to evade her arrest nor fixed any time or place for appearance of the petitioner, hence, this Court has no hesitation in holding that the learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag has committed an illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying with 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. Hence the order dated 09.12.2020 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribagh is quashed and set aside.
11. So far as the order dated 07.01.2021 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO Act, Hazaribag is concerned, since this court has already quashed and set aside the order dated 09.12.2020 passed by the learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag whereby and whereunder the proclamation under Section 82 of Cr.P.C was issued, hence, this court is of the considered view that the order dated 07.01.2021 passed by learned Additional Sessions Judge-I,- cum- Special Judge, POCSO Act, Hazaribag be also quashed and set aside because there is no justification for handing over the proclamation under Section 82 of Cr.P.C, which was not made in accordance with law.
12. Accordingly, all the order dated 07.01.2021 passed by learned Additional Sessions Judge-I,-cum- Special Judge, POCSO Act, Hazaribag in connection with the Muffasil P.S. case no. 257 of 2018 registered for the offences punishable under Section 366A/363 of the IPC and Section 8 and 12 of the POCSO Act is also quashed and set aside.
7 Cr.M.P. No. 266 of 202113. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 24th January, 2024 Smita /AFR