Allowed

Fagu Kherwar v. the State of Jharkhand

Jharkhand HC24 Jul 2023Cr.M.P./4631/2022

Case brief

AI extract

What is this about?

This Court quashed orders directing issuance of proclamation under Section 82 Cr.P.C. holding that the trial Court failed to record reasons to believe the petitioner was absconding. The Court noted absence of NBW execution report and no reply from SP before issuing process, violating statutory conditions.

What did the court decide?

Orders dated 24.01.2017, 27.04.2022 and 05.05.2017 directing issuance of process under Sections 82 and 83 Cr.P.C. were quashed and set aside; matter remitted for fresh steps.

Fagu Kherwar Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4631 of 2022

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Fagu Kherwar son of Late Khema Kherwar aged about 45 years, resident of Village Sarnadih, PO & PS. Mahuadanr, District Latehar. Petitioner

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Versus The State of Jharkhand ... Opposite Party

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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------For the Petitioners : Mr. Prashant Kumar Rahul, Advocate For the Respondent : Mrs. Kumari Rashmi, Advocate ------ Order No. 03 / Dated: 24^th July, 2023

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The instant application has been filed under Section 482 of the Code of Criminal Procedure for quashing order dated 24.01.2017 and 27.04.20222 whereby and whereunder the learned Additional Chief Judicial Magistrate, Latehar and learned Additional Sessions JudgeIII, Latehar respectively directed to issue proclamation under Section 82 of the Code of Criminal Procedure in connection with Mahuadanr P.S. Case No. 22 of 2016 corresponding to G.R. Case No. 369 of 2016, pending in the Court of learned Additional Sessions Judge-III in S.T. No. 94 of 2019; and also for quashing of order dated 05.05.2027 passed by learned Additional Chief Judicial Magistrate, Latehar by which process under Section 83 of the Code of Criminal Procedure was issued.

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2. The learned counsel appearing for the petitioner has submitted that the orders impugned are not sustainable in

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the eyes of law for the reason that process under Section 82 Cr.P.C had been issued without any subjective satisfaction. It has further been contended that the order issuing process under Section 82 is said to be proper if there would have been material before the concerned Court that even in spite of issuance of non-bailable warrant (NBW) which has duly been served and it has duly been executed, the petitioner did not appear, but there is no report to that effect, as would appear from order dated 27.04.2022.

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3. It has further been submitted that the learned trial Court without appreciating the aforesaid fact has issued process under Section 82 Cr.P.C. Such submission has been made on the ground that the petitioner was having no knowledge about the pendency of the case since F.I.R. was lodged against unknown and the moment the process under Section 82 has been issued he having been informed the instant petition has been filed.

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4. Learned counsel for the petitioner on the aforesaid premise has submitted that impugned orders are not sustainable in the eyes of law.

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5 . Mrs. Kumari Rashmi, learned Additional Public Prosecutor, appearing for the Opposite Party-State is not in a position to rebut the said argument reason being that there is no reference of the fact that Non-Bailable Warrant (NBW) has ever been served or any report to that effect by

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the Investigating Officer, in the impugned order dated 27.04.2022.

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6 . This Court has heard learned counsel for the parties and perused order dated 27.04.2022, which is part of the entire order-sheet as annexed by the petitioner in connection with Sessions Trial No. 94 of 2019. It appears from order dated 27.04.2022 that the learned trial Court has prompted to issue process under Section 82 Cr.P.C. basing upon the reason that the petitioner has failed to appear before the Court in spite of issuance of Non-Bailable Warrant as also letter has also been issued to the Superintendent of Police.

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7. There is no doubt about the legal position that process under Section 82 Cr.P.C. is required to be issued in pursuance of process stipulated under Section 82 Cr.P.C., wherein it has been provided that if any Court has reason to believe, whether after taking evidence or not, that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place.

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8. It is, thus, evident from the aforesaid provision that the Court has to give a reason as to why the process under Section 82 Cr.P.C. is being issued and such ‘reason to believe’ is to be based upon the consideration that the

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accused has absconded or is concealing himself so that such warrant of arrest cannot be executed.

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9. For ready reference, Section 82 (1) of the Code of Criminal Procedure is quoted as under:

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“82. Proclamation for person absconding.

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(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

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10. The fact of this case, as would appear from order dated 27.04.2022 by which process under Section 82 Cr.P.C. has been issued, is that the learned trial Court on the pretext that due to non-appearance of the petitioner the trial is being procrastinated even though non-bailable warrant of arrest has been issued, has directed to issue proclamation under Section 82 of the Code of Criminal Procedure as also letter has been issued to Superintendent of Police. Immediately on the same date the process under Section 82 Cr.P.C. has been issued.

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11 . But the learned trial Court, according to our considered view, has not taken pain to get a report from the Superintendent of Police to whom letter was issued,

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reference to that effect has been made in order dated 27.04.2022.

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12 . The order passed by learned trial Court would be said to be correct only if there would have been any information that the writ petitioner is concealing himself to come before the Court of law for justice but herein it is evident that the learned trial Court has only referred about issuance of Non-bailable warrant and not its execution and without mentioning fate of said letter written to Superintendent of Police directed to issue proclamation under Section 82 of the Code of Criminal Procedure.

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13. In view thereof, issuance of process under Section 82 Cr.P.C. cannot be said to be in compliance to the conditions as stipulated under Section 82 Cr.P.C. wherein the phrase ‘ reason to believe’ is of paramount importance. The expression ‘ reason to believe ’ appearing in sub-section (1) of Section 82 Cr.P.C. means sufficient cause to believe. Section 26 IPC also explicates that a person is said to have ‘ reason to believe ’ a thing if he has sufficient cause to believe that thing but not otherwise. Thus, ‘reason to believe’ that a person against whom warrant is issued is either absconding or concealing himself should be reflected by the material placed on record before the Court. The use of expression ‘ so that such warrant cannot be executed further implies that the person must be attributed with the

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knowledge that such warrant has been issued against him and his abscondence or concealment is intentional.

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14 . Herein the fact of the case is that the writ petitioner is not named in the F.I.R. The Non-bailable warrant was issued but it was not executed as no report to that effect is available on record.

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15 . Further from perusal of entire order-sheet it appears that there is no service report prior to passing impugned orders that 24.01.2017, 27.04.2022 and 05.05.2017.

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16. It appears from the order impugned that since the fact about service report having not been considered as no report is available on record and further without waiting for the execution report since process under Section 82 Cr.P.C. has been issued, therefore, the same cannot be said to be ‘reason to believe’ that the process under Section under Section 82 Cr.P.C. was to be issued.

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17 . Moreover, letter was also issued to Superintendent of Police to that effect but it appears that without waiting for the reply or execution report, the process under Section 82 Cr.P.C. was issued, which this Court finds in violation of condition as stipulated under Section 82 Cr.P.C.

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18. This Court, on the basis of discussion, made hereinabove, is of the view that impugned order by which process under Sections 82 and 83 Cr.P.C. has been issued needs to be interfered with.

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19 . Accordingly, orders dated 24.01.2017, 27.04.20222 as also order dated 05.05.2017 are hereby quashed and set aside.

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20 . The matter is remitted before the learned trial Court to take fresh steps in accordance with the procedure as stipulated under Code of Criminal Procedure.

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21 . Accordingly, the instant petition stands

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allowed.

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(Sujit Narayan Prasad, J.)

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Alankar/-

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N.A.F.R

Fagu Kherwar v. the State of Jharkhand

Case brief

What is this about?

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Fagu Kherwar v. the State of Jharkhand

Case brief

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