Rajesh Ali vs The State Of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer to quash and set aside the orders dated 30.09.2020, 28.05.2025, 16.09.2025 & 23.12.2025 passed by learned Judicial Magistrate-1^st Class, Ramgarh in connection with Gola P.S. Case No.23 of 2020 corresponding to G.R. Case No.901 of 2025 whereby and where under respectively non-bailable warrant of arrest, the process under Section 82 of Cr.P.C., attachment order of the property of the petitioner under Section 83 of Cr.P.C. and permanent warrant of arrest has been issued against the petitioner.

The brief fact of the case is that the petitioner is an accused person of Gola P.S. Case No.23 of 2020 and the allegation against the petitioner is that the petitioner along with 9 to 10 labourers committed theft of 04 drums of conductor wires of 7.6 km length and 400 metres of open wire worth about Rs.25 lakhs.

On the basis of the written report submitted by the informant, police registered Gola P.S. Case No.23 of 2020 and took up investigation of the case and during the investigation of the case, the IO of the case prayed for issuance of non-bailable warrant of arrest against the petitioner The IO submitted case diary and the same was seen by the learned Judicial Magistrate-1^st Class, Ramgarh and from the perusal of the case diary, the learned Judicial Magistrate-1^st Class, Ramgarh was satisfied that the petitioner is the named accused person of the case involving the non-bailable offence and on being satisfied about the requirement of issuance of non-bailable warrant of arrest, the same was issued vide order dated 30.09.2020. On 28.05.2025, the IO of the case made a prayer to the learned Judicial Magistrate-1^st Class, Ramgarh for issuance of the process under Section 82 of Cr.P.C. against the petitioner. The learned Judicial Magistrate-1^st Class, Ramgarh from perusal of the case diary was satisfied that though the NBW has been issued against the petitioner and the IO of the case has tried several times to arrest the petitioner, who is the accused person of the case at Malda in the State of West Bengal in his residence, but the petitioner is continuously evading his arrest and by thus considering, the learned Judicial Magistrate-1^st Class, Ramgarh issued the process under Section 82 of Cr.P.C. by fixing the time 11.00 AM on 08.07.2025 for the petitioner to appear in the said court of learned Judicial Magistrate-1^st Class, Ramgarh. Even after the proclamation under Section 82 of Cr.P.C. was issued, the petitioner did not appear before the learned Judicial Magistrate-1^st Class, Ramgarh at the time fixed by it, in the process issued under Section 82 of Cr.P.C. On 16.09.2025. The IO of the case again made a prayer for issuance of attachment of the property under Section 83 of Cr.P.C., the learned Judicial Magistrate-1^st Class, Ramgarh considered that though the petitioner was directed to appear before the court concerned at 11.00 AM on 08.07.2025 and the proclamation under Section 82 of Cr.P.C. has been duly made, but still the petitioner has not appeared before the said Court of learned Judicial Magistrate-1^st Class, Ramgarh and from the materials available, the learned Judicial Magistrate-1^st Class, Ramgarh was satisfied that the petitioner is about to disposed of whole or any part of his property; which was evident from para-197 & 198 of the case diary and after thus considering, the learned Judicial Magistrate-1^st Class, Ramgarh passed the order for attachment of all movable property belonging to the proclaimed offenders. On 23.12.2025, as still the petitioner did not appear before the Court concerned and from perusal of the record it appeared to the learned Judicial Magistrate-1^st Class, Ramgarh that the petitioner is shown as an absconder and execution report of the property attached is in the case diary but still the petitioner did not appear, so the learned Judicial Magistrate-1^st Class, Ramgarh directed for issuance of permanent warrant of arrest against the accused person for his appearance on 02.01.2026, but the petitioner did not appear before the court concerned and till today he has not appeared before the learned Judicial Magistrate-1^st Class, Ramgarh.

Learned counsel for the petitioner submits that the petitioner is a poor person; who earns his livelihood by daily wage labourer work outside his home State and police never issued or served any notice under Section 41 A of Cr.P.C.. It is next submitted that the power under section 73 of Cr.P.C. has been mechanically exercised.

Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Inder Mohan Goswami and Another vs State of Uttaranchal and Others reported in (2007) 12 SCC 1 and submits that in para-54 thereof it has been observed by the Hon’ble Supreme Court that as far as possible, if the Court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.

Learned counsel for the petitioner further submits that non-issuance of notice under Section 41A of Cr.P.C. violates the mandate of the judgement of the Hon’ble Supreme Court of India in the case of Arnesh Kumar vs. State of Bihar and Another reported in (2014) 8 SCC 273, wherein in para-11, the Hon’ble Supreme Court of India has observed that endeavour of the Supreme Court in the said judgement was to ensure that the police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In para-11.6 of the said judgement, it has also been observed that the notice of appearance in terms of Section 41-A Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district; for the reasons to be recorded in writing and in para-11.7 of the said judgement, it has further been observed that the failure to comply with the directions aforesaid shall, apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

Learned counsel for the petitioner then relies upon the judgment of the Hon’ble Supreme Court of India in the case of Ashok Kumar Agarwal @ Ashok Agarwal & Another vs. The State of Jharkhand & Another reported in 2015 SCC OnLine Jhar 4797 and submits that in that case, before issuance of non-bailable warrant against the petitioners, the Court below has not recorded the satisfaction that in the circumstances of the case, it is warranted. Undoubtedly, in course of investigation, the court can issue warrant in exercise of power thereunder to apprehend, inter alia, a person who is an accused of a non-bailable offence and is evading arrest.

Learned counsel for the petitioner next submits that without a lawful valid execution report of Section 82 of Cr.P.C. process is completely contrary to law and unsustainable, hence, it is lastly submitted that the prayer, as prayed for in the instant Cr.M.P, be allowed.

Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that the undisputed fact is that the petitioner is the resident of the place mentioning which address, the non-bailable warrant of arrest was issued. Though the petitioner has made a faint attempt to justify evading the attempt of the police to apprehend him by making a vague plea that he was a poor man working outside the State to earn his livelihood, but it is not difficult to fathom that the petitioner could not dared to reveal as to at which place he was working, in what capacity and during which period; because while disclosing such information his lie will get exposed. It is next submitted that the undisputed fact remains that the police after investigation of the case, found the allegations against the petitioner to be true and submitted charge sheet against the accused persons on 18.05.2020 and the learned Judicial Magistrate-1^st Class, Ramgarh took cognizance of the offence punishable under Section 379 of the Indian Penal Code. It is next submitted that the bare perusal of the FIR reveals that the petitioner was the master mind and the principal accused of the case and during the investigation of the case till submission of the charge sheet against the co-accused, the petitioner could not be apprehended in spite of best efforts made by the police, so investigation was continuing against the petitioner; while charge sheet was submitted against the co-accused persons. It is then submitted that Police before submission of charge sheet against the co-accused persons visited the house of the petitioner; where he was found absent. It is next submitted that there is no material in the record to suggest that the police did not issued the notice under Section 41-A of Cr.P.C. to the petitioner and as the petitioner was not residing in the given address and the petitioner has also not disclosed in this petition as to in which address he was residing, so there is no way, the notice under Section 41-A of Cr.P.C. could be served upon petitioner. It is further submitted that a person who evades his appearance before police by absconding from his admitted place of residence, has no right to claim notice under Section 41-A of Cr.P.C. and to challenge the order of issue of non-bailable warrant of arrest on the ground that the police has not served the notice under Section 41-A of Cr.P.C. upon him; because such a proposition will frustrate the provisions of the procedural law in shape of code of criminal procedure.

It is then submitted by the learned counsel appearing for the State that so far as the order dated 30.09.2020 is concerned, the learned Judicial Magistrate-1^st Class, Ramgarh has recorded that he has gone through the entire case diary and the materials collected by the police and from the same, it was crystal clear that the petitioner was evading his arrest by keeping himself out of the way of the police; when the police visited his house, so no illegality has been committed by the learned Judicial Magistrate-1^st Class, Ramgarh in passing order for issuing the non-bailable warrant of arrest when the twin condition envisaged under Section 73 of Cr.P.C. that inter alia accused must be involved in a non-bailable offence and the accused evades his arrest was fulfilled.

So far as the order dated 28.05.2025 is concerned, it is submitted by the learned Addl.P.P. that there is absolutely no illegality in the same as the learned Judicial Magistrate-1^st Class, Ramgarh has recorded its satisfaction that the petitioner is absconding and concealing himself to evade his arrest and fixed the time and place for his appearance and issued the proclamation under Section 82 of Cr.P.C. Similarly, there is no illegality in the order dated 16.09.2025 whereby the attachment order of the property of the petitioner has been passed by the learned Judicial Magistrate-1^st Class, Ramgarh consequent upon failure of the petitioner to appear before the court concerned at 11 AM on 08.07.2025 even though the proclamation under Section 82 of Cr.P.C. was validly made.

It is further submitted by the learned Addl.P.P. that for the similar reason, there is absolutely no illegality in the order dated 23.12.2025 whereby consequent upon the execution report of the attachment order of the property made under Section 83 of Cr.P.C. being received back in the Court, still the petitioner managed to evade his arrest and did not appear before the court concerned and approached this Court for the first time on 14.07.2026, hence, it is submitted that there being no illegality in any of the impugned orders, therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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 the judgments which were relied upon by the learned counsel for the petitioner are no doubt the settled principle of law, but the facts remains that the petitioner though is the named accused person of the case and principal accused of the case of committing theft of 04 drums of conductor wires of 7.6 km length and 400 meters of open wire worth about Rs.25 lakhs along with the co-accused person, but he has managed to evade his arrest for over six years. Though, the petitioner has made a vague plea that he was working outside his home State in West Bengal for his livelihood, but he has failed to mention as to exactly at which place and in what capacity and for which duration, he worked; so that the same made him stay away from his admitted place of his normal residence, as has been mentioned in the cause title of this Cr.M.P. as well as in the impugned order dated 28.05.2025.

The undisputed fact remains that the petitioner was not found at the place of his residence when police went there, so police were forced to submit charge sheet on 18.05.2020 against the co-accused person while continuing the investigation against the petitioner. Since, the petitioner was not available at his normal place of residence when the police visited there, there was no alternative address furnished by the petitioner even till today, so no fault can be found with the police for not serving a notice under Section 41-A of Cr.P.C. upon the petitioner.

So far as the order dated 30.09.2020 is concerned, this Court after going through the same found that the learned Judicial Magistrate-1^st Class, Ramgarh has satisfied inter alia twin conditions for issuing the non-bailable warrant of arrest against the petitioner; that is, the accused being involved in a non-bailable offence and he is evading the arrest; therefore, this Court do not find any illegality in the said order dated 30.09.2020.

So far as the order dated 28.05.2025 is concerned, in the said order, the learned Judicial Magistrate-1^st Class, Ramgarh has in no uncertain manner has recorded its satisfaction that the petitioner is evading his arrest and being thus satisfied, has directed for issuance of the process under Section 82 of Cr.P.C. by fixing the time and place for appearance of the petitioner at 11.00 AM on 08.07.2025 in the Court of the learned Judicial Magistrate-1^st Class, Ramgarh. Therefore, this Court also do not find any illegality in the order dated 28.05.2025.

So far as the order dated 16.09.2025 is concerned, the undisputed facts remains that the proclamation of the process under Section 82 of Cr.P.C. has duly been made in accordance with law; which was recorded by the learned Judicial Magistrate-1^st Class, Ramgarh, in the order dated 16.09.2025; even after the proclamation under Section 82 Cr.P.C. was made, still the petitioner did not appear before the court concerned on the date fixed in such proclamation, so after being thus satisfied and further being satisfied from para-197 & 198 of the case diary that the petitioner is about to dispose of whole or any part of the property, the learned Judicial Magistrate-1^st Class, Ramgarh having ordered for issuance of order of attachment of property under Section 83 CrP.C. against the petitioner, therefore, this Court do not find any illegality in the same.

So far as the order dated 23.12.2025 is concerned, it is pertinent to mention here that even after attachment of the property of the petitioner, the petitioner did not appear before the Court concerned, so from the execution report of the attachment order under Section 83 of Cr.P.C., the learned Judicial Magistrate-1^st Class, Ramgarh was satisfied that this was a case where permanent warrant of arrest is to be issued and accordingly, he has ordered for that. Therefore, this Court is of the considered view that there is no illegality in the order dated 23.12.2025 either.

In view of the discussions made above, there being no illegality in the orders dated 30.09.2020, 28.05.2025, 16.09.2025 & 23.12.2025 passed by learned Judicial Magistrate-1^st Class, Ramgarh in connection with Gola P.S. Case No.23 of 2020 corresponding to G.R. Case No.901 of 2025 warranting interference of this Court in exercise of the power under Section 528 of BNSS, 2023.

Accordingly, this Court is of the considered view that this is not a fit case where the prayer as prayed for by the petitioner is to be acceded to in exercise of the power under Section 528 of the BNSS, 2023.

Accordingly, this Cr.M.P., being without any merit, is dismissed.