Allowed

Rajesh Rajpal v. the State of Jharkhand

Jharkhand HC5 Aug 2024Cr.M.P./1296/2024

Case brief

AI extract

What is this about?

Petitioner sought quashing of a proclamation under Section 82 Cr.P.C. and attachment order under Section 83 Cr.P.C. passed by single-sentence orders in a complaint case. The High Court held both orders illegal: no satisfaction of abscondence was recorded, no time or place fixed, no evidence of proclamation, no property description or reasons. Both orders were quashed.

What did the court decide?

Orders dated 08.09.2022 (proclamation u/S 82 CrPC) and 28.03.2023 (attachment u/S 83 CrPC) quashed; Magistrate free to pass fresh order in accordance with law.

Rajesh Rajpal Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1296 of 2024

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Rajesh Rajpal, aged about 55 years, son of Late Mohan Lal Rajpal, resident of Jain Mandir Road, Castair’s Town Deoghar, P.O. –B. Deoghar, P.S. –Deoghar, District -Deoghar.

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.... Petitioner

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Versus

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The State of Jharkhand

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Anshul Saraff, S/o Sri Suresh Saraff, R/o –Mohalla –Bilasi Town, Deoghar, P.O. –T. Bilasi, P.S. –Deoghar, District –Deoghar.

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…. Opp. Parties

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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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For the Petitioner : Mr. Pran Pranay, Advocate For the State : Mrs. Kumari Rashmi, Addl. P.P.

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By the Court:-

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Heard the parties.

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Though notice has been validly served upon the opposite

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party no.2, but no one turns up on behalf of the opposite party no.2 in-spite of repeated calls.

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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 the orders dated 08.09.2022 and 28.03.2023 passed by the learned Judicial Magistrate -1^st Class, Deoghar in Complaint Case No. 346 of 2020 by which respectively the proclamation under Section 82 Cr.P.C. and the attachment order of property of the accused

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Cr.M.P. No.1296 of 2024

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person under Section 83 Cr.P.C. has been issued by the learned Judicial Magistrate -1^st Class, Deoghar.

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The brief facts of the case is that on 08.09.2022, the petitioner who was the accused of the said Complaint Case No. 346 of 2020 was absent in the court and the learned Judicial Magistrate -1^st Class suo moto in a single sentence order directed issuance of the proclamation under Section 82 Cr.P.C. and vide order dated 28.03.2023, again by a single sentence order has directed the office to issue the attachment order of property under Section 83 Cr.P.C.

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It is submitted by the learned counsel for the petitioner that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 08.09.2022 without following the due 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. that too without fixing any place and time for appearance of the petitioner; who is the accused person of the said case. It is then submitted that without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, the learned Judicial Magistrate -1^st Class, Deoghar has committed a gross illegality by issuing the attachment order of the property of the petitioner under Section 83 Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the orders dated 08.09.2022 and

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Cr.M.P. No.1296 of 2024

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28.03.2023 passed by the learned Judicial Magistrate -1^st Class, Deoghar in Complaint Case No. 346 of 2020; being not in accordance with law, be quashed and set aside.

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Learned Addl. P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 08.09.2022 and 28.03.2023 passed by the learned Judicial Magistrate -1^st Class, Deoghar in Complaint Case No. 346 of 2020 and submits that the very fact that the learned Judicial Magistrate -1^st Class has issued the proclamation under Section 82 Cr.P.C. and the order of attachment under Section 83 Cr.P.C. itself shows that there were materials available in the record for the learned Judicial Magistrate to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this criminal miscellaneous petition 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 Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 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 Cr.P.C. it must mention the time and place for appearance of the petitioner in the order itself by which the

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Cr.M.P. No.1296 of 2024

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proclamation under Section 82 Cr.P.C. is issued. As already indicated above since the learned Judicial Magistrate -1^st Class, Deoghar 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 Judicial Magistrate-1^st Class, Deoghar 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, therefore, continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 08.09.2022 passed by the learned Judicial Magistrate -1^st Class, Deoghar in Complaint Case No. 346 of 2020, be quashed and set aside.

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Under such circumstances, the order dated 08.09.2022 passed by the learned Judicial Magistrate -1^st Class, Deoghar in Complaint Case No. 346 of 2020, is quashed and set aside

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So far as the order dated 28.03.2023 passed in the said Complaint Case No. 346 of 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, 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

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record to suggest that the proclamation under Section 82

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Cr.M.P. No.1296 of 2024

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Cr.P.C. was in fact made in accordance with law, certainly the learned Judicial Magistrate, Deoghar 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 28.03.2023 passed by the learned Judicial Magistrate-1^st Class, Deoghar in Complaint Case No. 346 of 2020 is also not in accordance with law and continuation of the same will amount to abuse of process of law, therefore, this is a fit case where the order dated 28.03.2023 passed by the learned Judicial Magistrate-1^st Class, Deoghar in Complaint Case No. 346 of 2020, be quashed and set aside.

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Accordingly, the order dated 28.03.2023 passed by the learned Judicial Magistrate-1^st Class, Deoghar in Complaint Case No. 346 of 2020, is quashed and set aside.

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The learned Judicial Magistrate-1^st Class, Deoghar may pass a fresh order in accordance with law.

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In the result, this criminal miscellaneous petition stands allowed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 5^th August, 2024 AFR/Sonu-Gunjan/-

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Cr.M.P. No.1296 of 2024

Rajesh Rajpal v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Rajesh Rajpal v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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