Allowed

Anis Kumar Sinha v. the State of Jharkhand

Jharkhand HC11 Oct 2023Cr.M.P./3092/2023

Case brief

AI extract

What is this about?

The High Court quashed an order issuing a proclamation under Section 82 Cr.P.C. for failing to record satisfaction of the accused being absconding and omitting time and place for appearance, holding such omissions violate mandatory legal requirements.

What did the court decide?

The order dated 13.09.2023 passing the proclamation under Section 82 Cr.P.C. is quashed and set aside.

Anis Kumar Sinha Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2023)

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Cr. M.P. No.3092 of 2023

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3092 of 2023

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Anis Kumar Sinha @ Anish Kumar Sinha, aged about 41 years, son of Suresh Prasad Sinha, resident of Village- Gewal Bigha, Mahabir Sthan, Ward No.34, P.O.- Rampur, P.S.- Rampur, District- Gaya, Bihar. … Petitioner

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Versus

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… The State of Jharkhand Opposite Party

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For the Petitioner : Mr. Arun Kr. Dubey, Advocate For the State : Ms. Priya Shrestha, Spl. P.P. ------

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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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/set aside the order of issuance of proclamation under Section 82 of Cr.P.C. dated 13.09.2023 and order dated 15.04.2023 in respect of issuance of non-bailable warrant of arrest passed by the learned Chief Judicial Magistrate, Garhwa in connection with Garhwa P.S. Case No.117 of 2018 corresponding to G.R. No.581 of 2018 registered for the offence punishable under Section 406, 409, 420, 467, 468, 34 of the Indian Penal Code pending in the court of learned Chief Judicial Magistrate, Garhwa.

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At the outset, learned counsel for the petitioner submits that the petitioner does not press this Cr.M.P. to quash the order dated 15.04.2023 and confines his prayer to quash the order dated 13.09.2023 passed in the said case.

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Cr. M.P. No.3092 of 2023

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The brief fact of the case is that on 13.09.2023, the Investigating Officer of the case filed a requisition for issuance of the proclamation under Section 82 of Cr.P.C. The learned Chief Judicial Magistrate, Garhwa recorded its satisfaction that the petitioner is absconding and issued proclamation under Section 82 of Cr.P.C. without fixing the time and place for appearance of the petitioner.

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Learned counsel for the petitioner submits that in para-06 of the instant Cr.M.P. it has been mentioned that the notice under Section 41 A of Cr.P.C. was issued but drawing attention of this Court towards the order dated 27.10.2021 passed by this Court in A.B.A. No.8015 of 2021, learned counsel for the petitioner submits that the petitioner is aware that the notice under Section 41A of Cr.P.C. has been issued in the name of the petitioner but showing him to be a resident of Kumhar Toli, P.O. & P.S.- Doranda, Ranchi though the petitioner is not a resident of Kumhar Toli, P.O. & P.S.- Doranda, Ranchi. It is next submitted that the learned Chief Judicial Magistrate, Garhwa has violated the mandate of law by not fixing the time and place for the petitioner to appear. Hence, it is submitted that the order dated 13.09.2023 passed by the learned Chief Judicial Magistrate, Garhwa in connection with Garhwa P.S. Case No.117 of 2018 corresponding to G.R. No.581 of 2018 which is pending in the court of learned Chief Judicial Magistrate, Garhwa, be quashed and set aside.

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Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer for quashing the order dated 13.09.2023 passed by the learned Chief Judicial Magistrate, Garhwa in connection with Garhwa P.S. Case No.117 of 2018 corresponding to G.R. No.581 of 2018 which is pending in the court of learned Chief Judicial Magistrate, Garhwa and fairly submits that the learned Chief Judicial Magistrate, Garhwa has not mentioned the time and place for the petitioner to appear in the said order dated 13.09.2023 by which the proclamation under Section 82 of Cr.P.C. has been ordered to be issued

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Cr. M.P. No.3092 of 2023

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against the petitioner. Learned Spl.P.P. further submits that since it is the natural corollary that once the proclamation under Section 82 of Cr.P.C. is issued, the accused must appear before the court, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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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 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, Garhwa has neither recorded its satisfaction that the petitioner is absconding or concealing himself to be evade his arrest nor fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Garhwa has committed 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 and this is a fit case where the order dated 13.09.2023 be quashed and set aside.

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Accordingly, the order dated 13.09.2023 passed by the learned Chief Judicial Magistrate, Garhwa in connection with Garhwa P.S. Case No.117 of 2018 corresponding to G.R. No.581 of 2018 which is pending in the court of learned Chief Judicial Magistrate, Garhwa, is quashed and set aside.

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Cr. M.P. No.3092 of 2023

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The learned Chief Judicial Magistrate, Garhwa may pass a fresh order in

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accordance with law.

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In the result, this Cr.M.P. stands allowed.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 11^th of October, 2023 AFR/ Animesh

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Anis Kumar Sinha v. the State of Jharkhand

Case brief

What is this about?

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Anis Kumar Sinha v. the State of Jharkhand

Case brief

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