Dilip Kumar Singh Vs the State of Jharkhand

Cr. M.P. No.200 of 2024

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.200 of 2024

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Dilip Kumar Singh, aged about 49 years, Son of Sri Shiv Darash Singh, Resident of Flat No. 502/B, Vasundhara Garden, Harihar Singh Road, P.O.- Morabadi, P.S.- Bariatu, District- Ranchi.

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… Petitioner

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Versus

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… The State of Jharkhand Opposite Party

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For the Petitioner : Mr. Rahul Kumar, Advocate For the State : Mr. Vineet Kr. Vashistha, Spl. P.P. ------ 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 19.01.2017, 05.11.2019 and 01.12.2023 by which respectively the proclamation under Section 82 Cr.P.C. was issued, attachment order under Section 83 of Cr.P.C. was issued and the non-bailable warrant of arrest was issued in that order; passed by learned Sub-Divisional Judicial Magistrate, Ramgarh in connection with G. (F.I.) Case No.89 of 2015 registered for the offences punishable under Section 92 of the Factories Act, 1948 and the said case is pending before the learned Sub-Divisional Judicial Magistrate, Ramgarh.

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The brief facts of the case is that the petitioner is an accused of the said G. (F.I.) Case No.89 of 2015, the cognizance of which was taken on 25.05.2015 but undisputedly the summon was never served upon the petitioner and without execution-report of the bailable warrant of arrest vide order dated 04.06.2016, non-bailable warrant of arrest was issued. On 19.01.2017, without

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Cr. M.P. No.200 of 2024

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recording any 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., a proclamation was issued and on 05.11.2019, without the execution report of the proclamation under Section 82 of Cr.P.C., the attachment order under Section 83 of Cr.P.C. has been issued and again vide order date 01.12.2023, non-bailable warrant of arrest has been issued against the petitioner.

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Learned counsel for the petitioner submits that the petitioner had no knowledge about the said G. (F.I.) Case No.89 of 2015, hence, the issuance of non-bailable warrant of arrest and proclamation under Section 82 of Cr.P.C. and the attachment order under Section 83 of Cr.P.C behind the back of the petitioner, without adhering to the mandatory provisions of law, is not sustainable in law. Hence, it is submitted that the orders dated 19.01.2017, 05.11.2019 and 01.12.2023 passed by learned Sub-Divisional Judicial Magistrate, Ramgarh in connection with G. (F.I.) Case No.89 of 2015 which is now pending before the learned Sub-Divisional Judicial Magistrate, Ramgarh, be quashed and set aside.

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Learned Spl.P.P. appearing for the State on the other hand opposes the prayer for quashing and setting aside the orders dated 19.01.2017, 05.11.2019 and 01.12.2023 passed by learned Sub-Divisional Judicial Magistrate, Ramgarh in connection with G. (F.I.) Case No.89 of 2015 which is now pending before the learned Sub-Divisional Judicial Magistrate, Ramgarh and submits that the very fact that the learned Sub-Divisional Judicial Magistrate, Ramgarh has issued the non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and the order of attachment of property, itself show that there were materials available in the record for the learned Sub-Divisional Judicial Magistrate, Ramgarh to be satisfied that there is justification for issuance of such

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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 it is a settled principle of law that if a court issues a summon to an accused person; then without service of the summon, warrant of arrest cannot be issued by the court concerned.

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Now, after carefully going through the materials available in the record, it is crystal clear that the learned trial court has ordered for issue of notice but from the record itself it is clear that the said summon was never served upon the petitioner and without the service report of the summon issued to the petitioner, certainly the learned trial court has committed a grave error by issuing the non-bailable warrant of arrest vide order dated 04.06.2016.

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Accordingly, the said order dated 04.06.2016 passed by learned SubDivisional Judicial Magistrate, Ramgarh in connection with G. (F.I.) Case No.89 of 2015; is quashed and set aside.

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So far as the order dated 19.01.2017 is concerned, 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 accused person in respect of whom such proclamation is made, in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As already indicated above since the learned Sub-Divisional Judicial Magistrate, Ramgarh has neither recorded its satisfaction that the petitioner is absconding or concealing himself

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Cr. M.P. No.200 of 2024

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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 Sub-Divisional Judicial Magistrate, Ramgarh 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, therefore, this is a fit case where the order dated 19.01.2017 be quashed and set aside.

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Accordingly, the order dated 19.01.2017 passed by the learned SubDivisional Judicial Magistrate, Ramgarh in G. (F.I.) Case No.89 of 2015, is quashed and set aside. 11. So far as the order dated 05.11.2019 is concerned, it is a settled principle of law that the court issuing proclamation under Section 82 of Cr.P.C., for reasons to be recorded in writing at any time after the issue of proclamation, may 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 Sub-Divisional Judicial Magistrate, Ramgarh 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 05.11.2019 passed by the learned Sub-Divisional Judicial Magistrate, Ramgarh in G. (F.I.) Case No.89 of 2015 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 05.11.2019 passed by the learned Sub-Divisional Judicial Magistrate, Ramgarh in G. (F.I.) Case No.89 of 2015, be quashed and set aside.

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Cr. M.P. No.200 of 2024

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Accordingly, the order dated 05.11.2019 passed by the learned SubDivisional Judicial Magistrate, Ramgarh in G. (F.I.) Case No.89 of 2015, is quashed and set aside.

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So far as the order dated 01.12.2023 is concerned, as earlier also a nonbailable warrant of arrest was issued and subsequently a proclamation under Section 82 of Cr.P.C. and the process under Section 83 of Cr.P.C. has already been issued so, the learned court below before issuing the non-bailable warrant of arrest, must have recorded its satisfaction that the petitioner is evading his arrest but having not done so, the order dated 01.12.2023 is not sustainable in law; accordingly the same is also quashed and set aside.

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At this stage, learned counsel for the petitioner submits that the petitioner will surrender before the learned court below within four weeks from the date of this judgment.

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In case the petitioner fails to appear before the learned trial court within four weeks from the date of this judgment, the learned trial court will pass appropriate orders in accordance with law afresh, starting from issue of nonbailable warrant of arrest against the petitioner.

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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

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Dated the 26^th of February, 2024 AFR/ Animesh

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Dilip Kumar Singh v. the State of Jharkhand

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Dilip Kumar Singh v. the State of Jharkhand

Case brief

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