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Jharkhand High Court · body

2015 DIGILAW 686 (JHR)

Rajendra D. Seth v. State of Jharkhand

2015-06-16

RAVI NATH VERMA

body2015
Order The petitioner questions the legality and validity of the order dated 11.04.2013 passed by learned Judicial Magistrate, Ranchi in Namkum P.S. Case No.173 of 2011 whereby proclamation under Section 82 of the Code of Criminal Procedure (in short 'the Code') has been issued against the petitioner without complying the mandate of the said provision. 2. To put in short the relevant facts, necessary for the purpose of adjudication of the point involved is that the petitioner was made accused in Namkum P.S. Case No173 of 2011 under Section 387 of the Indian Penal Code on the allegation that one Rekha Jha, who happens to be the daughter of the informant-Lakshmi Kant Jha was married to this petitioner in Purulia court on 18th August, 2010 before the marriage registrar but after two days of the marriage, the petitioner started misbehaving with the said Rekha Jha and pressurising her to bring a sum of Rupees Six lacs from her father and when the said Rekha Jha protested, petitioner assaulted her and also the grand-children of the informant. Whereafter the informant filed the First Information Report before the police station at Namkum. 3. It appears from the record that by order dated 24.04.2015, lower court record was called for from the court concerned and on perusal of the said record, it appears that on 27.08.2011, the First Information Report was placed before the learned Chief Judicial Magistrate and by the second order dated 02.05.2012, the record was transferred to the court of Shri Manish, Judicial Magistrate, Ranchi. The very next order dated 11.04.2013 discloses that on an application filed by the Officer-in-Charge, Namkum Police Station, Ranchi the court after perusing the execution report of the non-bailable warrant, issued process under Section 82 of the Code and the court has only stated in the order-sheet that 'seen the execution report of the non-bailable warrant and the prayer to issue process was allowed. From the 4th order dated 29.05.2013, it appears that the case record was transferred to the court of Smt. Shweta Kumari from the court of Shri Manish, Judicial Magistrate, 1st Class, Ranchi and thereafter on three subsequent dates the court has only recorded that final form has not yet been received. There is no any other order either issuing non-bailable warrant or showing satisfaction or declaring the petitioner as absconder. There is no any other order either issuing non-bailable warrant or showing satisfaction or declaring the petitioner as absconder. However, from perusal of papers available in the record of lower court it transpires that earlier Officer-in-Charge of Namkum Police Station had filed an application before the court of Judicial Magistrate, 1st Class, Sri Gulam Haider whereafter the warrant of arrest was issued as the offence alleged was non-bailable in nature. 4. Mr. Gadodia, learned counsel appearing for the petitioner assailing the order impugned seriously contended that on mere perusal of the order-sheet maintained by the court concerned, it appears that the court had taken the entire proceeding very leisurely and even did not care to maintain the order-sheet as it is not clear from the order-sheet when the warrant of arrest against this petitioner was issued. Relying upon the two judgments State of Madhya Pradesh V. Pradeep Sharma reported in (2014)2 SCC 171 , Inder Mohan Goswami and Anr. V. State of Uttaranchal and Ors. reported in (2007) 12 SCC 1 learned counsel submitted that without complying the mandate of Section 82 of the Code, issuance of process amounts to interference with the personal liberty of an accused and that though Section 73 confers the power upon a Magistrate to issue warrant of arrest against the person who is an accused of non-bailable offence if he is evading arrest but the process/proclamation under Section 82 of the Code cannot be issued unless the court declares the person as proclaimed offender in terms of Section 82 of the Code and that the subjective satisfaction of the court must appear from the order-sheet itself. 5. Contrary to the aforesaid submissions, the learned counsel representing the State submitted that on the requisition filed by the Officer-in-Charge of the concerned police station with the report that the petitioner is evading his arrest, non-bailable warrant of arrest was issued and relying upon execution report, the process/proclamation under Section 82 of the Code was issued and merely because the order-sheet have not been maintained, the entire process cannot be termed as illegal and invalid. Hence, there is no illegality in the said order. 6. Chapter VI of the Code, deals with the process to compel the appearance of the accused. Section 61 of the Code relates to the issuance of summon. Hence, there is no illegality in the said order. 6. Chapter VI of the Code, deals with the process to compel the appearance of the accused. Section 61 of the Code relates to the issuance of summon. How the summon is to be served, is given in Sections 62, 63 and 64 of the Code. Since the case at hand was a non-bailable offence, non-bailable warrant was issued against the petitioner and after receiving the report as it appears from the record, the process under Section 82 of the Code was issued. 7. For better appreciation of the issue involved in this case, it is necessary to reproduce Section 82 of the Code hereinbelow:- 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 and not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house. (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). 8. Apparently, Section 82 of the Code empowers any court to the extent that if there is reason to believe, that any person against whom warrant has been issued is either absconding or is concealing himself so that such a warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and on a specific time within a period not less than 30 days from the date of publishing such proclamation. Sub-Section 4 of Section 82 of the Code incorporates number of provisions of Indian Penal Code where even after issuance of proclamation, the person fails to appear on the specified place and time required under the proclamation, the court being satisfied after inquiry can pronounce the accused as a „proclaimed offender? and make a declaration to that effect. But in the present case, the offence alleged against this petitioner is under Section 387 of the Code which is not covered within the provisions as provided in sub Section 4 of Section 82. So far as issuance of non-bailable warrant against this petitioner is concerned, there is apparent violation and the court has not even maintained any order-sheet showing issuance of non-bailable warrant against this petitioner or receipt of service report. So far as issuance of non-bailable warrant against this petitioner is concerned, there is apparent violation and the court has not even maintained any order-sheet showing issuance of non-bailable warrant against this petitioner or receipt of service report. In the case of State of Madhya Pradesh V. Pradeep Sharma (supra) relied upon by the petitioners, the issue involved was only relating to maintainability of anticipatory bail application after issuance of the process under Section 82 of the Code. Hence, the ratio decided in the above case is not applicable in the present case. Similarly, in the case of Inder Mohan Goswami and Anr. V. State of Uttaranchal and Ors. (supra) the Hon’ble Supreme Court has clearly mandated that there cannot be any strait jacket formula for issuance of warrant but as a general Rule, unless an accused is charged with the commission of an offence of a heinous crime and it is not feared that he is likely to tamper or destroy the evidence or also likely to evade the process of law, issuance of non-bailable warrants should be avoided. 9. In the instant case, non-bailable warrant was issued by the court without following the mandate given in the above case and apparently the court below has not even maintained the order-sheet showing the request of the Investigating Officer for issuance of non-bailable warrant. However, in the order dated 11.04.2013 while issuing process under Section 82 of the Code, the court has only reported “seen the execution report of N.B.W.” but has not recorded any satisfaction as required under Section 82 of the code. It is undoubtedly a clear ignorance of the basic requirement and the mandate of Section 82 of the Code. Hence, I am constrained to hold that the order passed by the court below issuing non bailable warrant and the subsequent order dated 11.04.2013 by which the process under Section 82 of the Code was issued by the court below being not in accordance with law, are not sustainable. Hence, both the above orders are, hereby, quashed. 10. This application is, thus, allowed. However, the petitioner is directed to appear before the court below within three weeks from today. 11. Let a copy of this order be sent to the court concerned through FAX at the cost of the petitioner.