Allowed¶28

Arjun Mahto v. the State of Jharkhand

Jharkhand HC17 Sept 2024Cr.M.P./2713/2024

Case brief

AI extract

What is this about?

Section 82 Cr.P.C. proclamation; Section 83 Cr.P.C. attachment of property; mandatory preconditions — satisfaction of abscondence, time and place of appearance, reasons in writing, description of property; quashing; abuse of process; Section 528 B.N.S.S. 2023; Markacho P.S. Case No.37 of 2009; Judicial Magistrate, Koderma; Cr.M.P. No.2713 of 2024; High Court of Jharkhand; Anil Kumar Choudhary, J.

What did the court decide?

Cr.M.P. allowed; orders dated 03.02.2011 and 03.03.2011 quashed and set aside; learned Judicial Magistrate, Koderma may pass a fresh order in accordance with law. ¶28

Arjun Mahto Vs the State of Jharkhand — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Cr.M.P. allowed; orders dated 03.02.2011 and 03.03.2011 quashed and set aside; learned Judicial Magistrate, Koderma may pass a fresh order in accordance with law.

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Issue for consideration

Whether the proclamation dated 03.02.2011 under Section 82 Cr.P.C. was validly issued without recording satisfaction that the petitioner was absconding or concealing himself to evade arrest and without fixing time and place for appearance. +1 more

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Court's answer

A court issuing a proclamation under Section 82 Cr.P.C. must record its satisfaction that the accused is absconding or concealing himself to evade arrest.

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Ratio / Principle

The order issuing the proclamation under Section 82 Cr.P.C. must itself mention the time and place for appearance of the accused.

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Key takeaways

The learned Judicial Magistrate, Koderma committed illegality by issuing the proclamation dated 03.02.2011 without complying with the mandatory requirements of Section 82 Cr.P.C.; it is unsustainable and its continuation would amount to abuse of process.ratio¶20
Attachment of property under Section 83 Cr.P.C. may be ordered only for reasons recorded in writing after issuance of the proclamation.ratio¶22

Detailed headnote1 paragraphs

Criminal Miscellaneous Petition under Section 528 of B.N.S.S., 2023 — quashing of proclamation under Section 82 Cr.P.C. dated 03.02.2011 and attachment order under Section 83 Cr.P.C. dated 03.03.2011, both passed by single-sentence orders by the learned Judicial Magistrate, Koderma in Markacho P.S. Case No.37 of 2009 — Held: the court issuing a proclamation under Section 82 Cr.P.C. must record its satisfaction that the accused is absconding or concealing himself to evade arrest and must mention the time and place for appearance in the order itself; attachment under Section 83 Cr.P.C. requires reasons recorded in writing and presupposes a proclamation made in accordance with law — the Magistrate having neither recorded such satisfaction nor fixed time and place, and the attachment order lacking any description of the property or recorded reasons, both orders were held illegal, their continuation an abuse of process, and both were quashed and set aside, with liberty to pass a fresh order in accordance with law — Cr.M.P. allowed.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2713 of 2024

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Arjun Mahto, aged about 60 years, son of Somar Mahto, resident of village & P.O.- Jamu, P.S.- Markacho, District- Koderma

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… Petitioner

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Versus The State of Jharkhand … Opposite Party

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------ For the Petitioner : Mr. Raja Ravi Shekhar Singh, Advocate For the State : Mr. Shailendra Kr. Tiwari, Spl.P.P.

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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 528 of B.N.S.S., 2023 with a prayer to quash the orders dated 03.02.2011 and 03.03.2011 passed in connection with Markacho P.S. Case No.37 of 2009 by the learned Judicial Magistrate, Koderma whereby and where under respectively, the proclamation under Section 82 of the Code of Criminal Procedure was issued by a single sentence order and the attachment order of property was issued again by a single sentence order and the said case is now pending in the court of the learned Judicial Magistrate, Koderma.

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Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. was issued vide order dated 03.02.2011 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 the proclamation under Section 82 of Cr.P.C.; that too without fixing

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Cr. M.P. No.2713 of 2024

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any time and place for appearance of the accused persons of the case in respect of whom the proclamation under Section 82 of Cr.P.C. was issued 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 the property of the petitioner under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, the learned Judicial Magistrate, Koderma committed a grave illegality in that case by passing the said order under Section 83 of Cr.P.C. without mentioning the property to be attached. Hence, it is submitted that the orders dated 03.02.2011 and 03.03.2011 passed in connection with Markacho P.S. Case No.37 of 2009 by the learned Judicial Magistrate, Koderma being not in accordance in law, be quashed and set aside.

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Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer as prayed for by the petitioner for quashing the said orders dated 03.02.2011 and 03.03.2011 and submits the very fact that the learned Judicial Magistrate, 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

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that there were materials available in the record for the learned Judicial Magistrate, 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

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Cr. M.P. No.2713 of 2024

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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 Judicial Magistrate, 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, hence, this Court has no hesitation in holding that the learned Judicial Magistrate, Koderma 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 03.02.2011 passed by the learned Judicial Magistrate, Koderma in connection with Markacho P.S. Case No.37 of 2009, be quashed and set aside.

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Accordingly, the order dated 03.02.2011 passed by the learned Judicial Magistrate, Koderma in connection with Markacho P.S. Case No.37 of 2009, is quashed and set aside.

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So far as the said order dated 03.03.2011 is concerned, it is a settled principle of law that the court issuing the proclamation under Section 82 of Cr.P.C. may 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 Judicial Magistrate, Koderma committed illegality by passing the order of attachment

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Cr. M.P. No.2713 of 2024

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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, this Court has no hesitation in holding that the order dated 03.03.2011 passed by the learned Judicial Magistrate, Koderma in connection with Markacho P.S. Case No.37 of 2009 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 03.03.2011 passed by the learned Judicial Magistrate, Koderma in connection with Markacho P.S. Case No.37 of 2009, be quashed and set aside.

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Accordingly, the order dated 03.03.2011 passed by the learned Judicial Magistrate, Koderma in connection with Markacho P.S. Case No.37 of 2009, is quashed and set aside.

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