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Jharkhand High Court · body

2016 DIGILAW 781 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2016-05-05

RONGON MUKHOPADHYAY

body2016
ORDER : In this application, the petitioner has prayed for quashing of the order dated 10.12.2015 as well as the order dated 29.01.2016 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Dhansar) P.S. Case No. 883 of 2015, whereby and whereunder warrant of arrest as well as proclamation under Section 82 Cr.P.C. had been issued against the petitioner. 2. An FIR was instituted on the basis of a written report of the informant wherein it was alleged that the marriage of the informant was solemnized with the petitioner on 11.05.2013 as per Hindu Rites & Customs and subsequent to the marriage there was a demand of Cash as well as a Car. It is further alleged that the informant was also assaulted by the petitioner and on account of torture she had started residing at her parental house. Based on the aforesaid allegations, Dhanbad (Dhansar) P.S. Case No. 883 of 2015 was instituted. 3. Pursuant to a requisition submitted by the Investigating Officer, warrant of arrest was ordered to be issued against the petitioner on 10.12.2015 and thereafter on another requisition of the Investigating Officer vide order dated 29.01.2016, proclamation under section 82 Cr.P.C. was ordered to be issued against the petitioner. 4. Heard Mr. Indrajit Sinha, learned counsel for the petitioner, Mr. Mukesh Kumar, learned A.P.P. and Mr. S.K. Laik, learned counsel appearing for O.P. No. 2. 5. Mr. Indrajit Sinha, learned counsel for the petitioner, has submitted that none of the orders impugned reflect subjective satisfaction on the part of the learned Magistrate and the orders have been passed without independent application of judicial mind. Learned counsel submits that it has merely been indicated in the orders that the petitioner was evading arrest. It has further been submitted that the alleged raid, which was conducted at Delhi in the office of the petitioner on Sunday and thus it cannot be said that the petitioner was deliberately avoiding arrest. It has also been submitted that both the orders having been issued in a mechanical manner are liable to be quashed. 6. Mr. It has further been submitted that the alleged raid, which was conducted at Delhi in the office of the petitioner on Sunday and thus it cannot be said that the petitioner was deliberately avoiding arrest. It has also been submitted that both the orders having been issued in a mechanical manner are liable to be quashed. 6. Mr. S.K. Laik, learned counsel appearing for O.P. No. 2, has submitted that all efforts to produce the petitioner had failed and infact the Investigating Officer had taken every efforts to arrest the petitioner but in spite of the same the petitioner continued to evade arrest and therefore none of the orders impugned can be said to be not in accordance with law. Learned counsel in support of his contention has referred to the judgment rendered in the case of Inder Mohan Goswami & Anr. Vs. State of Uttranchal, reported in 2008(1) JLJR 82(SC). 7. Learned A.P.P. while adopting the arguments advanced by the learned counsel for the informant has further stated that all efforts were made by the Investigating Officer and in fact on coming to know that the petitioner is residing at Gurgaon, attempts were made to arrest the petitioner and on such failure, the learned court below was perfectly justified in acceding to the request of the Investigating Officer while issuing proclamation under Section 82 Cr.P.C. 8. The order for warrant of arrest dated 10.12.2015 reflects that the requisition of the investigating officer was allowed by stating that the petitioner was evading arrest. The order dated 29.01.2016 is on similar lines while issuing proclamation under section 82 Cr.P.C 9. In the case of Inder Mohan Goswami (supra) with respect to the circumstances where non bailable warrant of arrest will be issued, it has been held as follows:- “52. Non-bailable warrant should be issued to bring a person to court when summons on bailable warrants would be unlikely to have the desired result. This could be when: It is reasonable to believe that the person will not voluntarily appear in court; or The police authorities are unable to find the person to serve him with a summon; or It is considered that the person could harm someone if not placed into custody immediately”. 10. This could be when: It is reasonable to believe that the person will not voluntarily appear in court; or The police authorities are unable to find the person to serve him with a summon; or It is considered that the person could harm someone if not placed into custody immediately”. 10. Learned counsel for the informant while referring to paragraph 52 of the judgment quoted above has submitted that the petitioner is evading the process of Court as in spite of best efforts made by the Investigating Officer, the petitioner could not be traced out and in such view of the matter, the impugned orders have rightly been passed. 11. In order to appreciate the rival contentions, it would be necessary to refer to the case of Raghuvansh Dewachand Bhasin vs. State of Maharashtra & Anr. Reported in 2011 (4) JLJR 385 (SC), wherein it was held 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. 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 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.” 12. Similarly in the case of Arnesh Kumar Vs. State of Bihar & Anr. reported in 2014(3) JCBJ 352(SC), various guidelines were laid down with respect to the arrest of an accused and for arriving at a just decision in the case at hand, it would be necessary to quote paragraph 12, which is as under: “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. 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 arrest, while forwarding/ producing the accused before the Magistrate for further 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). 13. Both the impugned orders merely state that the petitioner was evading arrest although it has been reflected in the said orders that the case diary has been perused but the same by itself does not suggest that the learned Magistrate had recorded his subjective satisfaction with respect to the necessity of issuing of warrant of arrest as well as proclamation under section 82 Cr.P.C. 14. In the case of of Raghuvansh Dewachand Bhasin (supra), a note of caution was put that the courts have to be extra cautious and careful while directing issuance of non bailable warrant of arrest. In any view of the matter, subjective satisfaction of learned Magistrate should be indicated in the order itself and absence of the same would render such orders being illegal and not in accordance with law. 15. As a consequent to the discussions made hereinabove, this application is allowed and the order dated 10.12.2015 as well as the order dated 29.01.2016 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Dhansar) P.S. Case No. 883 of 2015, whereby and whereunder warrant of arrest as well as proclamation under Section 82 Cr.P.C. had been issued against the petitioner, are hereby quashed and set aside. However, learned Chief Judicial Magistrate, Dhanbad is at liberty to proceed in the matter in accordance with law. Application allowed.