Sulendar Oraon @ Surendra Oraon vs The State Of Jharkhand

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with three prayers but at the outset, the learned counsel for the petitioner submits that the petitioner does not press the prayer to quash the order dated 23.12.2011 passed by the learned Judicial Magistrate-1^st Class, Gumla in connection with Ghaghra P.S. Case No.29 of 2008 corresponding to G.R. Case No.369 of 2008 by which the attachment order of the property of the petitioner was made as by now no property of the petitioner has been attached, accordingly, the said prayer is rejected as not pressed.

Learned counsel for the petitioner submits that the petitioner confines his prayer to quash the order dated 30.06.2011 passed by the learned Chief Judicial Magistrate, Gumla in connection with Ghaghra P.S. Case No.29 of 2008 corresponding to G.R. Case No.369 of 2008 registered for the offence punishable under Section 147, 148, 149, 436, 427 of the Indian Penal Code & Section 17 of CLA Act whereby and where the learned Chief Judicial Magistrate, Gumla has issued proclamation under Section 82 of the Code of Criminal Procedure against the petitioner and to quash the order dated 03.12.2013 passed by the learned Additional Sessions Judge-I, Gumla in S.T. Case No.171 of 2013 arising out of Ghaghra P.S. Case No.29 of 2008 by which the petitioner inter alia was declared as absconder and permanent warrant of arrest has been issued against the petitioner.

Learned counsel for the petitioner submits that so far as the order dated 30.06.2011 is concerned, the learned Chief Judicial Magistrate, Gumla 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. which corresponds to Section 84 of the BNSS, 2023, that too without fixing any time and place for appearance of the petitioner, who is the accused person of the said case; has passed the order for issue of the process under section 82 of Cr.P.C.. Hence, it is submitted that the order dated 30.06.2011 passed by the learned Chief Judicial Magistrate, Gumla in connection with Ghaghra P.S. Case No.29 of 2008 corresponding to G.R. Case No.369 of 2008 whereby and where the learned Chief Judicial Magistrate, Gumla has issued proclamation under Section 82 of the Code of Criminal Procedure, be quashed and set aside.

So far as the said order dated 03.12.2013 is concerned, it is submitted by the learned counsel for the petitioner that for declaring a person absconder and issuing permanent warrant of arrest, it must be proved before the court concerned, that the accused has absconded and there is no immediate prospect of arresting him but in this case, there being no material in the record to suggest that there is no immediate prospect for arresting the petitioner, hence, the learned Additional Sessions Judge-I, Gumla has committed a grave illegality in declaring him absconder and issued permanent warrant of arrest. It is submitted that the order dated 03.12.2013 passed by the learned Additional Sessions Judge-I, Gumla in S.T. Case No.171 of 2013 arising out of Ghaghra P.S. Case No.29 of 2008 being not sustainable in law, the same be also quashed and set aside.

Learned Addl.P.P. appearing for the State vehemently opposes the prayer to quash the said two order and submits that the very fact that the learned Chief Judicial Magistrate, Gumla has issued the proclamation under Section 82 of Cr.P.C. itself shows that there were materials available in the record for the learned Chief Judicial Magistrate, Gumla to be satisfied that there is justification for issuance of such proclamation and also declaring the petitioner to be an absconder and issued permanent warrant of arrest against him. Hence, it is submitted that this Criminal Miscellaneous Petition, 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 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 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 Chief Judicial Magistrate, Gumla 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 Chief Judicial Magistrate, Gumla 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 30.06.2011 passed by the learned Chief Judicial Magistrate, Gumla in connection with Ghaghra P.S. Case No.29 of 2008 corresponding to G.R. Case No.369 of 2008 whereby and where the learned Chief Judicial Magistrate, Gumla has issued proclamation under Section 82 of the Code of Criminal Procedure, be quashed and set aside qua the petitioner only.

Accordingly, the order dated 30.06.2011 passed by the learned Chief Judicial Magistrate, Gumla in connection with Ghaghra P.S. Case No.29 of 2008 corresponding to G.R. Case No.369 of 2008 whereby and where the learned Chief Judicial Magistrate, Gumla has issued proclamation under Section 82 of the Code of Criminal Procedure, is quashed and set aside qua the petitioner only.

So far as the order dated 03.12.2013 passed by the learned Additional Sessions Judge-I, Gumla in S.T. Case No.171 of 2013 arising out of Ghaghra P.S. Case No.29 of 2008 is concerned, it is a settled principle of law that before exercising the power under Section 299 of the Code of Criminal Procedure, it is necessary that all conditions prescribed must be strictly complied with; namely the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as has been held by the Hon’ble Supreme Court of India in the case of Nirmal Singh vs. State of Haryana, reported in (2000) 4 SCC 41.

Now coming to the facts of the case, the perusal of the record reveals that there is absolutely no material in the record to suggest that the petitioner has absconded or that there is no immediate prospect of arresting him. As the materials in the record suggest that though order for attachment of the property of the petitioner was passed, yet no effort was ever made to attach the property of the petitioner. In absence of any material to suggest that the petitioner was absconding or that there was no chance of the petitioner appearing in near future, certainly the learned Additional Sessions Judge-I, Gumla has committed a grave illegality by declaring the petitioner to be an absconder and issuing permanent warrant of arrest. Hence, this Court is of the considered view that the order dated 03.12.2013 passed by the learned Additional Sessions Judge-I, Gumla in S.T. Case No.171 of 2013 arising out of Ghaghra P.S. Case No.29 of 2008 being not sustainable in law be quashed and set aside.

Accordingly, the order dated 03.12.2013 passed by the learned Additional Sessions Judge-I, Gumla in S.T. Case No.171 of 2013 arising out of Ghaghra P.S. Case No.29 of 2008 is quashed and set aside.

The learned Additional Sessions Judge-I, Gumla or his successor court may pass a fresh order in accordance with law.

In the result, this Cr.M.P. stands allowed to the aforesaid extent only.