Mahbub Alam Alias Mahboob Mian Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1467 of 2020

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Mahbub Alam @ Mahboob Mian @ Mahboob Miyan, aged about 59 years, son of Ilahi Baks, resident of villageLaxandih

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Islam Miya @ Islam Miyan @ Islam Mian, aged about 47 years, son of Subhani Miya, resident of village- Laxandih

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Abdul Rauf Ansari @ Rauf Miyan @ Abdul Rauf, aged about 76 years, son of Nashir Uddin, resident of villageBagridih All under P.O.- Bagro, P.S.- Domchanch, Dist.- Koderma ...... Petitioners Versus The State of Jharkhand ….. Opposite Party For the Petitioners : Mr. A.K.Sahani, Adv. For the State : Ms. Vandana Bharti , Addl. PP

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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 the orders dated 10.09.2018 and 14.03.2019 whereby and where under proclamation under Section 82 Cr.P.C. and the attachment order of property under Section 83 Cr.P.C. respectively have been passed by the learned Additional Sessions Judge-III, Koderma in Sessions Trial No. 94 of 2014.

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Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 10.09.2018 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. and without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, passed order for attachment of

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the property of the petitioner under Section 83 of Cr.P.C. without mentioning the description of the property to be attached. Hence, it is submitted that the orders dated 10.09.2018 and 14.03.2019 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014; 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 10.09.2018 and 14.03.2019 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014 and submits that the very fact that the learned Additional Sessions Judge-II, Koderma has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Additional Sessions Judge-II, Koderma to be satisfied that there is justification for issuance of such proclamation and proceeding. 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 Additional Sessions Judge-II, Koderma 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 Additional Sessions Judge-II, Koderma

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has committed a grave 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 10.09.2018 be quashed and set aside.

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Accordingly, the order dated 10.09.2018 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014, is quashed and set aside.

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So far as the order dated 14.03.2019 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 record to suggest that the proclamation under Section 82 of Cr.P.C. was in fact made in accordance with law, certainly the learned Additional Sessions Judge II, Koderma 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 14.03.2019 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014 is also not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 14.03.2019 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014, be quashed and set aside.

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Accordingly, the order dated 14.03.2019 passed by the learned Additional Sessions Judge-II, Koderma in Sessions Trial No. 94 of 2014, is quashed and set aside.

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