Stan Swamy vs State Of Jharkhand

I.A. No.9956 of 2019

Through this interlocutory application, petitioner has prayed to incorporate a prayer in the prayer portion of the main criminal miscellaneous petition

wherein he has sought to further challenge the order dated 24.09.2019 passed by the Chief Judicial Magistrate, Khunti in Khunti Police Station Case

No. 124 of 2018 (G.R. No. 287 of 2018), by which process under Section 83 of the Code of Criminal Procedure has been issued against the petitioner.

Counsel for the petitioner submitted that on the date of filing of this criminal miscellaneous, i.e., on 24.09.2019 an order was passed by the Court

below issuing processes under Section 83 of the Code of Criminal Procedure against the petitioner, which necessitated filing of this interlocutory

application. He submits that if the amendment sought through the present interlocutory application is not allowed, another criminal miscellaneous

petition will have to be filed for challenging only the order dated 24.09.2019 passed by the Court below issuing process under Section 83 of the Code

of Criminal Procedure against the petitioner. Thus, to avoid multiplicity of proceeding, he prays to allow this interlocutory application.

State makes a formal objection to the prayer made by the petitioner.

After hearing the parties and after going through the records, I find that on the date of filing of this criminal miscellaneous, i.e., on 24.09.2019, an

order has been passed by the Court below issuing process under Section 83 of the Code of Criminal Procedure.

Being satisfied with the submission made by the counsel for the petitioner, in order to avoid multiplicity of proceeding, I am inclined to allow this

interlocutory application. Order dated 24.09.2019 passed by the Chief Judicial Magistrate, Khunti in Khunti Police Station Case No.124 of 2018 (G.R.

No.287 of 2018) will be treated as a part of the main criminal miscellaneous petition and an order under challenge.

I.A. No.9956 of 2019, thus, stands allowed.

Cr. M.P. No.3222 of 2019

Petitioner, in this criminal miscellaneous petition, has prayed for quashing the order dated 19.06.2019 by which warrant of arrest has been issued

against the petitioner. Further, he has challenged the order dated 22.07.2019, by which process under Section 82 of the Code of Criminal Procedure

has been issued against the petitioner. Further, by way of amendment, he has challenged the order dated 24.09.2019, by which processes under

Section 83 of the Code of Criminal Procedure has been issued.

Counsel for the petitioner submits that no notice under Section 41A of the Code of Criminal Procedure was issued against the petitioner and in

absence of issuance of said notice, warrant of arrest could not have been issued. He submits that on 12.06.2019, a search and seizure was conducted

by a police department of Pune in presence of several witnesses, including the State police, in the house of the petitioner. The petitioner, during the

said search, was also present, which fact has been acknowledged and documented by the Pune City Police, which is evident from Annexure 3/1

which is an information to the petitioner to that effect. He submits that since the petitioner was present at the time of search conducted on 12.06.2019,

it cannot be said that the petitioner was an absconder. He further submits that the order of issuance of process under Section 82 of the Code of

Criminal Procedure was passed on 22.07.2019 and the order does not reflect application of mind nor reflects any satisfaction. He further submits that

the consequential order issuing process under Section 83 of the Code of Criminal Procedure is also bad as the same also does not reflect the

substantive satisfaction of the Court. He submits that all the requisitions are table work without any details, which should not have been considered by

the Court.

The State had filed a counter affidavit, stating, inter alia, that the petitioner is involved in committing an offence under Sections 121, 121A, 124A of

the Indian Penal Code and Sections 66A, 66F of the Information Technology Act. Learned Advocate General representing the State in this case

submits that the petitioner had full knowledge about the case and inspite of knowledge, he did not cooperate with the investigation nor surrendered

before the Court. It is submitted that the Court was satisfied that it was necessary to issue warrant of arrest and on that basis warrant of arrest was

issued. He submits that since the petitioner was an accused of committing non-bailable offence and was evading arrest in terms of Section 73 of the

Code of Criminal Procedure, warrant of arrest has been issued. It is a case of the State that as the warrant of arrest could not executed, proclamation

was issued after fully complying with the provisions of the Code of Criminal Procedure and thereafter, process in terms of Section 83 of the Code of

Criminal Procedure was issued. It is submitted that there was no requirement of notice under Section 41A of the Code of Criminal Procedure as the

offence alleged is punishable with death and imprisonment for life. Learned Advocate General submitted that petitioner is not entitled to get any relief

as the petitioner is absconding.

I have heard the parties at length.

An FIR was registered being Khunti Police Station Case No.124 of 2018 against the petitioner and others for allegedly committing an offence

under Sections 121, 121A, 124A of the Indian Penal Code and Sections 66A, 66F of the Information Technology Act, alleging therein that the

petitioner was involved in anti-national activities and is spreading anti-national messages through the social media. It is alleged that the petitioner was

instigating through social media, supporters of ‘pathalgari’ who were protesting against the rule of the Government and was also allegedly

indulged in anti-national activities.

Since the petitioner has only challenged the order issuing warrant of arrest and process issued under Sections 82 and 83 of the Code of Criminal

Procedure, I am refraining myself from making any comment on the allegations levelled in the FIR.

In the aforesaid case, on 19.06.2019, the investigating officer filed a petition for issuing warrant of arrest against the five accused persons

including this petitioner. The Court below, on the aforesaid date, i.e., on 19.06.2019, issued warrant of arrest against the petitioner and others. It is

necessary to quote the order dated 19.06.2019, which reads as under: -

“19.6.19 The IO of this case has filed a petition and prayed for issuance of warrant of arrest against the accused persons, namely (1)

Bolesa Babita Kacchap D/o Sukra Kacchhap, (2) Sten Swami S/o Late Laurdu Swami (3) Aloka Kujur S/o Late Bhola Kujur (4) Binod

Kumar S/o0 late Agor Prasad and (5) Rakesh Roshan Kiro S/o late Salas Kiro. Seen. Prayer is allowed. O/c to issue warrant of arrest

against the aforesaid accused persons.â€​

From the aforesaid order, it is clear that in the first paragraph, the Court has narrated about the petition filed by the investigating officer against

accused persons praying for issuance of warrant of arrest against them. From the aforesaid order, it is also clear that the Court has seen the petition

and thereafter allowed the same, directing issuance of warrant of arrest. Counsel for the petitioner submitted that the aforesaid order is bad due to non

application of mind.

Section 73 of the Code of Criminal Procedure is related to the provision whereby warrants may be issued. It is necessary to quote Section 73(1),

which is as follows: -

“73. Warrant may be directed to any person. â€" (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a

warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is

accused of a non-bailable offence and is evading arrest.â€​

This provision provides that Judicial Magistrate or a Magistrate First Class may direct a warrant to any person within his local jurisdiction for the

arrest of any escaped convicting, proclaimed offender or to any person, who is accused of non-bailable offence and is evading arrest. Thus, from the

aforesaid provision of law, it is clear that warrant of arrest can be issued for arresting escaped convict, proclaimed offender or any person, who is an

accused of non-bailable offence and is evading arrest. So far as the case of the petitioner is concerned, it is neither the case of the parties that

the petitioner is an escaped convict or a proclaimed offender. Thus, the petitioner will fall in the third category, i.e., a person, who is accused of non-

bailable offence and is evading arrest.

Warrant of arrest, if directed against a person, should be strictly in accordance with Section 73 of the Code of Criminal Procedure. The order

should be in consonance with the provisions of Section 73(1) of the Code of Criminal Procedure. The warrant of arrest cannot be only issued for

helping and assisting the prosecution/police in investigation, as held by the Hon’ble Supreme Court in the case of State through C.B.I. versus Daud

Ibrahim Kasar reported in AIR 1997 SC 2494 (para 20). As stated earlier, so far as this petitioner is concerned, admittedly, he is an accused for

committing an offence, which is non-bailable in nature, but, that will not itself be enough for issuing process in terms of Section 73 of the Code of

Criminal Procedure. As per Section 73(1) of the Code of Criminal Procedure, that accused of non-bailable offence should also be evading arrest.

Thus, the two conditions should be fulfilled simultaneously â€" (1) that the person is accused of non-bailable offence and (2) he is evading his arrest.

The Court has to be satisfied that the person, who is an accused of committing a non-bailable offence, is also evading his arrest, then only the

warrant can be issued. Thus, the question, which would fall for consideration is as to whether the learned Magistrate has issued warrant of arrest

against the petitioner in consonance with the provisions of Section 73(1) of the Code of Criminal Procedure or not?

Issuing warrant of arrest involves a process, which curtails liberty of a person. Any process, which curtails liberty of a person, cannot be issued

mechanically, but, only after recording satisfaction. The Hon’ble Supreme Court, in the case of Raghuvansh Dewanchand Bhasin versus State of

Maharashtra reported in (2012) 9 SCC 791 (in paragraphs 10 and 11) has held as under: -

“10. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person,

warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case it is

warranted. The Courts have to be xtra-cautious and careful while directing issue of non-bailable warrant else a wrongful detention would

amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that

the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society

functional in harmony, it is necessary for the Court to strike a balance between an individual’s rights, liberties and privileges on the one

hand, and the State on the other hand. Indeed, it is a complex exercise. As Cardozo, J. puts it “on the one side is the social need that

crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any

choice.

Be that as it may, it is for the court, which is chothed with the discretion to determine whether the presence of an accused can be secured

by a bailable or non-bailable warrant to strike the balance between the need of law enforcement on the one hand and the protection of the

citizen from highhandedness at the hands of the law-enforcement agencies on the other. The power and jurisdiction of the court to issue

appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed.

Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the

offence involved; the past conduct of the accused; his age and the possibility of his absconding.â€​

Thus, from the aforesaid judgment, it is quite clear that the Court has to be extra cautious while issuing warrant of arrest and issuance of such

order cannot be in a mechanical manner. The Court has held that only after recording satisfaction that in fact the circumstances of the case warrant

for issuance of warrant of arrest, the same can be issued. Now, if this well settled law, is applied in the facts of the present case, I find that the order

dated 19.06.2019 passed by the Magistrate, which is quoted above, does not reflect any satisfaction. It was the duty of the Court to at least record his

satisfaction that the petitioner is evading arrest. This minimum satisfaction is also not recorded in the impugned order. Thus, in view of this Court,

order dated 19.06.2019 issuing warrant of arrest is not in conformity to the provisions laid down in Section 73(1) of the Code of Criminal Procedure

and also the judgment of the Hon’ble Supreme Court.

Now, if I refer to the order dated 22.07.2019, by which process under Section 82 of the Code of Criminal Procedure has been issued, I find that

the same is also a cryptic and unreasoned order. For better appreciation, it is necessary to quote the aforesaid order.

“22.7.19 The I.O. of this case has filed a petition and prayed for issuance of process 82 Cr.P.C. against the accused persons namely

Stan Swami S/o late Laurdu Swami R/o Bagicha ATC Campus P.S. Namkum Dist. Ranchi after submitting the E.R. of the warrant of arrest

stating that the accused has moved his movable and immovable property to avoid his arrest.

Seen. Prayer is allowed. O/c to issue process 82 Cr.P.C. against the aforesaid accused personâ€​

From the aforesaid order, I find that the Court has only seen the petition and allowed the same without recording any satisfaction. Section 82 of

the Code of Criminal Procedure provides for proclamation for a person absconding. Section 82(1) would be important for this purpose, which is quoted

below: -

“82. Proclamation for person absconding.-(1) If any Court has reason to believe (whether after taking evidence or not) that any person

against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court

may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the

date of publishing such proclamation.â€​

From the perusal of the aforementioned section, I find that the opening line of the section, is of utmost importance. It starts with, “if any Court

has reasons to believeâ€. This clearly means that the Court should have sufficient reasons to believe that it is necessary to issue process under

Section 82 of the Code of Criminal Procedure. The Court is to be swayed away or guided by the petition filed by the investigating officer praying for

issuance of process under Section 82 of the Code of Criminal Procedure. He must have sufficient materials before him and should have some reasons

to believe that it is necessary to issue process under Section 82 of the Code of Criminal Procedure. This reasoning should be reflected in the order

itself. The Magistrate has to apply his mind to form and record an opinion. Merely writing the words ‘seen’ or ‘perused’ does not mean

that he has applied his mind or has reasons to believe.

The reasons to believe should be incorporated in the order itself. In a very recent judgment delivered by the Hon’ble Supreme Court of India

on 5th December, 2019 in Cr. Appeal No.1843 of 2019 (Mahipal versus Rajesh Kumar @ Polia & Another] and other analogous cases, in paragraph

23 threof, it has been held that merely recording “having perused the records and on the facts and circumstances of the case†does not sub serve

the purpose of a reasoned judicial order.

In this case, as already held earlier, I find that the Court, only after seeing the petition, had simply allowed the prayer and issued process under

Section 82 of the Code of Criminal Procedure. There is no satisfaction recorded by the Court. This cannot be said to be an order supported by

reasoning. In absence of recording of satisfaction and the reason to believe that the person has absconded or is concealing, the impugned order issuing

process under Section 82 of the Code of Criminal Procedure is not in consonance with the provisions of Section 82(1) of the Code of Criminal

Procedure. Further, I find from the order sheet that it has also not been mentioned that as to when and where the petitioner has to appear as it is a

mandate of Section 82(1) that the proclamation should require him to appear at a specified place and specified time not less than 30 days from the

date of publication of such proclamation. Specified place, time and date is also not reflected in the ordersheet by which process under Section 82 of

the Code of Criminal Procedure was issued. The police papers, which were produced by the State, also do not suggest about the place and date of

appearance. Thus, there is no compliance of Section 82(1) of the Code of Criminal Procedure in the instant case, while issuing process under Section

82 of the Code of Criminal Procedure.

In view of what has been held above, the order dated 19. 06.2019 passed by the Chief Judicial Magistrate, Khunti in Khunti Police Station Case

No.124 of 2018 (G.R. No.287 of 2018) by which warrant of arrest has been issued and the order dated 22.07.2019 passed by the Chief Judicial

Magistrate, Khunti in Khunti Police Station Case No.124 of 2018 (G.R. No.287 of 2018) by which process under Section 82 of the Code of Criminal

Procedure has been issued, are hereby set aside and quashed. Since, these two orders are set aside, the order dated 24.09.2019 passed by the Chief

Judicial Magistrate, Khunti in Khunti Police Station Case No.124 of 2018 (G.R. No.287 of 2018), by which the process under Section 83 of the Code

of Criminal Procedure, which is a consequential order to the issuance of process under Section 82 of the Code of Criminal Procedure, is also hereby

set aside, as because process under Section 83 of the Code of Criminal Procedure, on facts of this case, is not an independent provision and is

dependent on the validity of the order, by which process under Section 82 of the Code of Criminal Procedure is issued.

In the light of the above, this criminal miscellaneous petition is allowed. The matter is remanded to the Court below for proceeding in accordance

with law afresh after complying with the provisions of the Code of Criminal Procedure.

Be it noted that this Court has not entered into the merits of the prosecution case.