Jharkhand High Court
Md. Faisal Zahid vs The Union Of India Through Cbi on 14 October, 2019
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1893 of 2019
Md. Faisal Zahid, aged about 33 years, son of Zahid Hussain,
resident of Sharif Colony, M.M. Nagar, P.O. and P.S. Siwan,
District Siwan, Bihar ... ... Petitioner
Versus
The Union of India through CBI
... ... Opposite Party
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Zaid Ahmed, Advocate
For the C.B.I. : Mr. R. N. Prasad, Advocate
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02/14.10.2019 Heard Mr. Zaid Ahmed, counsel appearing on behalf of
the petitioner.
2. Heard Mr. R. N. Prasad, counsel appearing on behalf of the opposite party- C.B.I.
3. This petition has been filed for quashing of the order dated 17.05.2019 passed by the learned Additional District Judge-IV, Dhanbad, in RC Case No. 6(A)/2013-D, registered for the offence under section 120-B read with 409, 420, 468, 471 & 477-A of the Indian Penal Code, Section 13(2) read with Section 13 (1)(c) & (d) of the Prevention of Corruption Act, 1988, whereby and whereunder process under Section 82 has been issued, which is now said to be pending in the court of learned Additional District Judge-IV, Dhanbad.
4. Counsel for the petitioner submits that by the impugned order dated 17.05.2019 process under Section 82 of the Code of Criminal Procedure has been issued against the petitioner merely on an application filed by the opposite party- C.B.I. and the learned court below has not recorded any reason or its satisfaction for the issuance of proclamation under Section 82 of Cr.P.C. He further submits that as per the provisions of Section 82 of Cr.P.C., it is a mandate of law that the court has to have the reason to believe that any person against whom warrant has been issued by it has absconded or is concealing himself so that 2 such warrant cannot be executed and has to record its own satisfaction prior to issuance of proclamation under Section 82 of Cr.P.C.
5. The learned counsel for the petitioner further submits that the petitioner never filed any bail application or anticipatory bail application or any petition before this Court and rather, the petitioner had no knowledge about pendency of the case before the learned court below. Counsel submits that the impugned order is fit to be set-aside on the short point of absence of recording of reasons for issuance of process under Section 82 of Cr.P.C.
6. Counsel for the petitioner has relied upon the judgment passed by this Court in Cr.M.P. No. 1060 of 2019 which was disposed of with other analogous cases and referred to para 7 at page 29 of the said judgment wherein it has been clearly held that the court must record the satisfaction or reasons for issuance of proclamation under Section 82 Cr.P.C.
7. Counsel for the opposite party- C.B.I., while opposing the prayer, has submitted that the petitioner has been avoiding the proceedings and accordingly, the application was filed by the C.B.I., but he is not in a position to dispute that the impugned order dated 17.05.2019 does not reflect any satisfaction of the learned court below or any finding to that effect.
8. After hearing the counsel for the parties and after considering the impugned order dated 17.05.2019, this Court finds that the learned court below has simply recorded the factum about filing of the petition for issuance of process under Section 82 of Cr.P.C. and has mechanically issued the process without recording any reason or finding for the purposes of the issuance of process under Section 82 of Cr.P.C.
9. This Court finds that the point argued by the petitioner is squarely covered by the aforesaid judgment passed by this Court in Cr.M.P. No. 1060 of 2019 and other analogous cases, 3 which has been relied upon by the petitioner. Para 7 of the aforesaid judgment is quoted for ready reference:
"7. It goes without saying that such satisfaction of the court is on the basis of requisition/application filed by the investigating officer or police, who has been authorised to execute the warrant, as such, such requisition must contain the reason for praying proclamation for person absconding, those reason must explain that accused after having knowledge or concealing himself, as such, that warrant cannot be executed, on the basis of such reason mentioned in the requisition/application, the court must record the same in its order and after recording reasons the Court ought to have recorded its satisfaction for issuance of proclamation under section 82 Cr.P.C."
10. Considering the aforesaid judicial pronouncement, this Court finds that the impugned order dated 17.05.2019 cannot be sustained in the eyes of law, which is accordingly set-aside and the matter is remitted back to the learned court below for passing fresh order on the application filed by the opposite party- C.B.I. and the learned court below is free to record its own satisfaction or otherwise, on the application filed by the C.B.I.
11. At this stage, the counsel for the opposite party submits that the C.B.I. would again move the application before the learned court below on 05.11.2019.
12. Pending interlocutory application, if any, is dismissed as not pressed.
13. Office is directed to communicate this order to the court concerned through 'FAX'.
(Anubha Rawat Choudhary, J.) Pankaj