Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 129 (JHR)

Atish Mishra v. State of Jharkhand

2016-01-18

RONGON MUKHOPADHYAY

body2016
ORDER : In this application, the petitioner has prayed for quashing the order dated 17.10.2015 passed by the learned Additional Chief Judicial Magistrate, Ghatsila whereby and whereunder process under Section 82 Cr.P.C. has been issued against the petitioner. 2. A First Information Report was instituted by the informant-opposite party No. 2 wherein it was alleged that the accused persons had made a demand of dowry and physical and mental torture were inflicted upon the informant. 3. On 26.02.2015 upon the requisition filed by the Investigating Officer for issuance of non-bailable warrant against the petitioner, the same was issued by the learned court below. In the anticipatory bail application filed by the petitioner being A.B.P. No. 63 of 2015 there was an order of no coercive steps against the petitioner. The anticipatory bail application was dismissed on 16.09.2015 and, thereafter, on 17.10.2015 the Investigating Officer had prayed for issuance of process 82 Cr.P.C. against the petitioner. An order was passed on 17.10.2015 itself in which the application of the Investigating Officer was allowed and process under Section 82 Cr.P.C. was ordered to be issued by the learned court below against the petitioner. 4. Heard Mr. K. P. Deo, learned counsel appearing for the petitioner, Mr. Kaushik Sarkhel, learned A.P.P. for the State and Mr. Ananda Sen, learned counsel appearing for the opposite party No. 2. 5. Mr. K. P. Deo, learned counsel appearing for the petitioner has submitted that from 17.06.2015 till 15.09.2015 an interim order of no coercive step was prevailing. It has been submitted that a copy of the warrant of arrest was received by the Investigating Officer on 19.09.2015 but no steps were taken by the Investigating Officer for execution of the warrant of arrest and without any service report a perfunctory application was filed by the Investigating Officer before the learned court below for issuance of process under Section 82 Cr.P.C. which was allowed vide order dated 17.10.2015. It has been submitted that the order dated 17.10.2015 wherein process under Section 82 Cr.P.C. has been issued is bereft of any reasoning with respect to the subjective satisfaction of the learned court below. It has been submitted that the order dated 17.10.2015 wherein process under Section 82 Cr.P.C. has been issued is bereft of any reasoning with respect to the subjective satisfaction of the learned court below. Learned counsel further submits that application made by the Investigating Officer for issuance of process under Section 82 Cr.P.C. and the subsequent order dated 17.10.2015 allowing the said application were done in a most mechanical manner and in such circumstances, the impugned order is liable to be quashed and set aside. 6. Mr. Ananda Sen, learned counsel appearing for the opposite party No. 2 while supporting the order impugned dated 17.10.2015 has submitted that the interim order which was passed in the anticipatory bail application of the petitioner was for not taking any coercive steps against the petitioner. Learned counsel has also submitted that there were sufficient reasons to suggest that the petitioner was absconding and in such circumstance the prayers so made by the Investigating Officer and passing of the order dated 17.10.2015 was within the realms of the provisions laid down in the Code of Criminal Procedure. 7. Mr. Kaushik Sarkhel, learned A.P.P. has adopted the argument of learned counsel for the opposite party No. 2 and has submitted that the requisition filed by the Investigating Officer clearly speaks that the accused was absconding and/or evading arrest and in such circumstance it was rightly prayed by the Investigating Officer for issuance of process under Section 82 Cr.P.C. and the order by which the said application was allowed does not suffer from any infirmity or illegality. 8. From the order-sheet which has been appended to the instant application, it appears that the First Information Report was received by the court of learned Additional Chief Judicial Magistrate, Ghatsila on 08.05.2015. On 20.06.2015 non-bailable warrant of arrest was issued against the accused persons and on the same date the copy of the order dated 17.06.2015 passed in A.B.P. No. 63 of 2015 was received from the court below by the Additional Sessions Judge, Ghatsila wherein no coercive steps were ordered to be taken against the petitioner. 9. The interim order so granted continued to be extended vide orders dated 29.06.2015, 10.07.2015, 31.07.2015, 12.08.2015 and 17.08.2015. The anticipatory bail application was rejected on 19.09.2015 which has been noted down by the learned Additional Chief Judicial Magistrate, Ghatsila in the order dated 19.09.2015. 9. The interim order so granted continued to be extended vide orders dated 29.06.2015, 10.07.2015, 31.07.2015, 12.08.2015 and 17.08.2015. The anticipatory bail application was rejected on 19.09.2015 which has been noted down by the learned Additional Chief Judicial Magistrate, Ghatsila in the order dated 19.09.2015. It, thus, appears that from 17.06.2015 till 15.09.2015 the interim order granted by the court of Additional Sessions Judge at Ghatsila in favour of the petitioner was in operation. On 19.09.2015 the Investigating Officer had received a copy of the warrant of arrest and, thereafter, had subsequently prayed for issuance of process under Section 82 Cr.P.C. and vide order dated 17.10.2015 learned Additional Chief Judicial Magistrate, Ghatsila had allowed the prayer made by the Investigating Officer. 10. In the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra & Anr. the Hon’ble Supreme Court had put in a note of caution by holding that the Courts have to be extra-cautious and careful while directing issuance of non-bailable warrant, otherwise a wrongful detention would amount to denial of constitutional mandate envisaged under Article 21 of the Constitution of India. The relevant extract of the aforementioned judgment is quoted hereinunder:- “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. There are dangers in any choice. 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 high-handedness at the hands of the law enforcement agencies on the other. …...(Emphasis supplied)” 11. The order dated 17.10.2015 which is under challenge in the present application shows total non-application of mind as there is nothing to indicate that there was subjective satisfaction on the part of the learned Additional Chief Judicial Magistrate, Ghatsila as no reasons had been disclosed for issuance of process under Section 82 Cr.P.C. The impugned order, thus, discloses non-application of independent judicial mind on the part of the learned court below as the order is apparently a mechanical order simply allowing the application of the Investigating Officer. The impugned order, therefore, cannot be sustained in law. 12. Accordingly, the order dated 17.10.2015 passed by the learned Additional Chief Judicial Magistrate, Ghatsila in Ghatsila P.S. Case No. 42 of 2015 whereby and whereunder process under Section 82 Cr.P.C. has been issued is, hereby, quashed and set aside. 13. The learned court below is at liberty to proceed in accordance with law. 14. This application is allowed.