Saryu Yadav Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1863 of 2018

Saryu Yadav, aged 52 years, son of Nunu Yadav, resident of Jamukhandi ( Urwan), P.O. & P.S.- Chandwara, Dist.Koderma, Jharkhand ...... Petitioner Versus

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The State of Jharkhand

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Shri Ayodhya Pandey, Son of resident of not known to the petitioner working for gain as the Area Forest Officer Barhi Sub-Division, Barhi, P.O. & P.S.- Barhi, Dist.- Hazaribag (Jharkhand) ….. Opposite Parties

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For the Petitioner : Mr. Nitin Pasari, Adv. Mr. Sidhi Jalan, Adv. For the State : Mr. Azemuddin, 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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Learned counsel for the petitioner submits that though in this criminal miscellaneous petition several prayers have been made but the petitioner abandons the prayer to quash the order taking cognizance dated 05.01.2018 but confines his prayer only to quash the orders dated 17.02.2018 and 24.03.2018 passed by the learned JMFC, Hazaribagh in connection with G(F) Case no. 35 of 2016. Accordingly, the prayer for quashing the order taking cognizance dated 05.01.2018 is rejected as not pressed. It is next submitted by learned counsel for the petitioner that by filing I.A. No. 7453 of 2018, prayer has also been made for quashing and setting aside the order dated 23.07.2018 passed by learned JMFC, Hazaribagh in connection with G (F) Case no. 35 of 2016 whereby and where under proclamation under Section 82 of CrPC has also been issued against the petitioner.

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Cr.M.P. No. 1863 of 2018

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So far as the orders dated 17.02.2018 passed by the learned JMFC, Hazaribagh in connection with G(F) Case no. 35 of 2016 is concerned, it is submitted by learned counsel for the petitioner by drawing attention of the court to the certified copy of the entire order sheet of the case that vide order dated 05.01.2018, the cognizance of the offence was taken by the learned JMFC, Hazaribagh and learned Magistrate issued for summon upon the accused persons including the petitioner and directed the case record to be put on 17.02.2018 but even though there is no compliance of the said order dated 05.01.2018 nor any service report of the summon has been annexed in the case record nor there is any reference of the same in the order concerned, learned Magistrate, mechanically without application of judicial mind has passed order on 17.02.2018 for issuance of bailable warrant of arrest and without the execution report of the bailable warrant of arrest being received, on the next day of listing of the case i.e. on 24.03.2018, non-bailable warrant of arrest has been issued against the petitioner. Learned counsel for the petitioner further submits that the said proclamation under section 82 of CrPC has been issued vide order dated 23.07.2018 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 that too, without fixing time and place for appearance of the petitioner, hence, it is submitted that orders dated 17.02.2018, 24.03.2018 and 23.07.2018 passed by the learned JMFC, Hazaribagh in connection with G(F) Case no. 35 of 2016 be quashed and set aside.

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Learned Addl. PP appearing for the State vehemently opposes the prayer opposes the prayer of the petitioner and submits 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

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pertinent to mention here that once learned Judicial Magistrate, has ordered for issuance summon to the accused persons of the case including the petitioner, it was incumbent upon the JMFC, to ensure that service report of the summons are received back by the court, before passing the order for issue of bailable warrant of arrest but having not done so and without referring as to what was the report received in the summons issued to the accused person of the case, and without mentioning that the accused persons of the case have not turned up even after service of summons, learned Magistrate has committed a gross illegality by passing the order for bailable warrant of arrest, accordingly the order dated 17.02.2018 passed by the learned JMFC, Hazaribagh in connection with G(F) Case no. 35 of 2016 is not sustainable in law, accordingly, the same is quashed and set aside.

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So far as the order dated 24.03.2018 passed by the learned JMFC, Hazaribagh in connection with G(F) Case no. 35 of 2016 is concerned, there is no material in the record that the bailable warrant of arrest was ever issued by learned Magistrate in the said G(F) Case no. 35 of 2016 nor there is any material to show that the same was ever executed and the without execution report of the same being received back in the court nor any material in the record to suggest that what happened to the bailable warrant of arrest, learned JMFC has committed a grave illegality by issuing a non-bailable warrant of arrest vide order dated 24.03.2018, accordingly, the same is also not sustainable in law. Therefore, the same is also quashed and set aside.

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So far as the order dated 23.07.2018 passed by learned JMFC, Hazaribag in connection with G (F) Case no. 35 of 2016 is concerned, after carefully going through the materials available in the record, it is pertinent to mention here that 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

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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 JMFC, Hazaribagh 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 JMFC, Hazaribagh 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 and the continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 23.07.2018 passed by learned JMFC, Hazaribagh in connection with G (F) Case no. 35 of 2016 be quashed and set aside. Accordingly, order dated 23.07.2018 passed by learned JMFC, Hazaribagh in connection with G (F) Case no. 35 of 2016 is also quashed and set aside.

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At this stage, learned counsel for the petitioner submits that the petitioner undertakes to appear before the court concerned, within eight weeks from the date of this order. Hence, in view of the undertaking given by the petitioner through the counsel appearing in the record, in case, the petitioner fails to appear before the court concerned, within eight weeks from the date of this order, learned JMFC, Hazaribagh is free to pass appropriate order in accordance with law.

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This Criminal Miscellaneous Petition stands disposed of accordingly.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 7^th August, 2024 Smita /AFR

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Cr.M.P. No. 1863 of 2018

Saryu Yadav v. the State of Jharkhand

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Saryu Yadav v. the State of Jharkhand

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