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2014 DIGILAW 843 (JHR)

Manoj Kumar Jain v. State of Jharkhand

2014-08-07

H.C.MISHRA

body2014
ORDER Complainant informant Opposite Party No.2 has appeared through Advocate. 2. Heard the learned counsel for the petitioners and the learned counsel for the State as also learned counsel for the opposite party No.2. 3. The petitioners have filed this application for quashing the F.I.R and the entire criminal proceeding against them in connection with Ramgarh P.S Case No.167 of 2014, corresponding to G.R No.1815 of 2014instituted for the offence under Sections 498-A, 406, 420 of the Indian Penal Code and Sections 3 / 4 of the Dowry Prohibition Act. 4. I.A No.3583 of 2014has been filed by the petitioners, challenging the orders dated 10.6.2014and 2.7.2014/ 3.7.2014passed by the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in the said G.R No. 1815 of 2014, whereby, warrants of arrest have been ordered to be issued against the petitioners and by the subsequent order, the process under Section 82 of the Cr.P.C., has been ordered to be issued against them. The prayer has been made in the interlocutory application for amending the prayer portion of the main application and adding the prayer for quashing these orders as well. The prayer is allowed. 5. In course of arguments, learned counsel for the petitioners has given up his prayer for quashing the criminal proceeding in the said Ramgarh PS Case No. 167 of 2014, as there are allegations against the petitioners in the FIR. Accordingly, this prayer of the petitioners is rejected as not pressed. 6. Learned counsel for the petitioners confined his arguments to the challenge of the order dated 10.6.2014as also the order dated 2.7.2014/ 3.7.2014, issuing the warrants and the process under Section 82 of the Cr.P.C., against the petitioners. It is submitted by the learned counsel for the petitioners that the order dated 10.6.2014has been passed without any application of mind by the Magistrate, only on the requisition of the I.O., and accordingly, the said order cannot be sustained in the eyes of law. It is submitted that the subsequent order being the consequential order, the same also cannot be sustained in the eyes of law. 7. Counter affidavit and an affidavit have been filed on behalf of the informant in this case, refuting the stand of the petitioners. It is submitted that the subsequent order being the consequential order, the same also cannot be sustained in the eyes of law. 7. Counter affidavit and an affidavit have been filed on behalf of the informant in this case, refuting the stand of the petitioners. By way of an affidavit filed on 7.8.2014, the informant has brought on record the requisitions filed by the Police Officer on 10.6.2014and on 2.7.2014, for issuance of warrants and the process against the petitioners, and in both these requisitions it is only stated that the accused persons were evading the arrest and were also removing their assets. 8. In support of his contention that the impugned orders passed by the Court below cannot be sustained in the eyes of law, learned counsel for the petitioners has placed reliance upon the decision of the Hon'ble Supreme Court of India in Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra & Anr., reported in 2011 (4) JLJR 385 (SC), wherein the law has been laid down as follows :- “9. 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 extra-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 rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the state on the other. Indeed, it is a complex exercise. As justice Cardozo 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. Indeed, it is a complex exercise. As justice Cardozo 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 clothed 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. ----------------- .” (Emphasis supplied). 9. Learned counsel has also placed reliance upon the decision of the Hon'ble Supreme Court of India in Arnesh Kumar Vs. State of Bihar & Anr., reported in 2014(3) JBCJ 352 (SC), wherein the Apex Court has laid down certain guidelines to be followed before arresting the accused, which are as follows :- "12. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. State of Bihar & Anr., reported in 2014(3) JBCJ 352 (SC), wherein the Apex Court has laid down certain guidelines to be followed before arresting the accused, which are as follows :- "12. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:- (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C. (2) All police officers be provided with a check list containing specified sub-clauses under Section 41 (1) (b) (ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention: (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of 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; (7) 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 High Court having territorial Jurisdiction. (8) Authorising detentions without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” (Emphasis supplied). 10. (8) Authorising detentions without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” (Emphasis supplied). 10. Placing reliance on these decisions learned counsel submitted that the impugned orders, issuing warrant of arrest and the process against the petitioners are absolutely illegal and the same cannot be sustained in the eyes of law. 11. Learned counsel for the State as also learned counsel for the opposite party No.2 have opposed the prayer and have submitted that there is no illegality in the impugned orders passed by the Court below. It is submitted by the learned counsel for the opposite party No.2 that after lodging the FIR, the petitioners were evading the arrest and accordingly, the requisition was given by the police Officer on 10.6.2014, stating therein that the accused persons were evading the arrest and also removing their property and accordingly, on the basis of which, the impugned order was passed for issuance of warrants against the petitioners. 12. Learned counsel also submitted that since the accused persons were also removing their assets, in view of another requisition submitted by the Police Officer, the process under Section 82 has also been directed to be issued against the petitioners. It is accordingly, submitted that there is no illegality in the impugned orders and no interference by this Court is warranted in the said orders in exercise of power under Section 482 of the Cr.P.C. 13. After having heard the learned counsels for both sides and upon going through the record, I find that upon the requisition given by the Police Officer, the warrants were directed to be issued against the petitioners by the Court below on 10.6.2014, directing for execution of the warrant within thirty days. This order is the first order after recording the institution of the case. Before expiry of the period of thirty days as aforesaid, i.e., on 2.7.2014the requisition was again given by the Police Officer, for issuance of the process under Section 82 of the Cr.P.C., again stating the same facts as in the previous requisition, and without mentioning anything about the execution of the warrants against the petitioners, whereupon the process under Section 82 was also directed to be issued against the petitioners. 14. 14. In my considered view, the order dated 2.7.2014/ 3.7.2014cannot be sustained in the eyes of law, as the process under Section 82 of the Cr.P.C., has been ordered to be issued before the expiry of the period of thirty days as granted by the Court below, for execution of the warrants, and that too, without getting the execution reports. Indeed this order also has been passed in an absolutely mechanical manner, without recording any satisfaction by the Magistrate. This brings us to the consideration of the order dated 10.6.2014issued by the Court below, issuing the warrants against the petitioners. This order only shows that the same was issued on the basis of the requisition made by the Police Officer, but there is nothing in the order to show that the Magistrate had applied his independent mind, while ordering for issuance of warrant. No reason has been assigned in the order for issuance of warrant, nor any satisfaction of the Magistrate is recorded that issuance of the warrant was warranted in the facts of the case. Even though learned counsel for the opposite party No.2 has pointed out that in the requisition for issuance of warrant, it is mentioned that the accused petitioners are evading the arrest, but it is apparent from the order dated 10.6.2014that even this reason has not been assigned in the said order, which clearly shows that the order has been issued without applying the judicial mind by the Court below. 15. In view of the aforesaid discussions, I find that the decision cited by the learned counsel for the petitioners in Raghuvansh Dewanchand Bhasin's case (supra) is fully applicable to the facts of this case and the impugned orders cannot be sustained in the eyes of law. 16. Apart from the above, the directions given by the Apex Court in Arnesh Kumar's case (supra), also needs to be kept in mind by the Police Officer while giving the requisition for issuing the warrant against the petitioners or while exercising his power of arrest under the Code of Criminal Procedure in the cases of the cognizable offences, which shall be exercised in accordance with law. 17. In view of the aforementioned discussions, the impugned orders dated 10.6.2014and 2.7.2014/ 3.7.2014passed by the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in G.R Case No.1815 of 2014, are hereby, set aside. 17. In view of the aforementioned discussions, the impugned orders dated 10.6.2014and 2.7.2014/ 3.7.2014passed by the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in G.R Case No.1815 of 2014, are hereby, set aside. This application, along with the interlocutory application, are accordingly, allowed in part.