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2016 DIGILAW 895 (JHR)

Arun Prasad v. State of Jharkhand

2016-05-20

ANANDA SEN

body2016
ORDER : In this application the petitioners are challenging the judgment passed in Criminal Appeal No.113 of 2012, by learned Additional Sessions Judge VI, Hazaribag by which he has upheld the order dated 23.07.2012 passed in proceeding under Section 107 of the Cr.P.C. by learned Sub-Divisional Magistrate, Ramgarh. 2. A proceeding under Section 107 of the Cr.P.C. was initiated on the ground that there appears to be apprehension of breach of peace between the parties to the said proceeding. The proceeding was initiated on 14.07.2011 and the parties, on notice, appeared on 15.09.2011. As the six month period was to expire on 14.03.2012, extension was sought for and was granted vide order dated 10.03.2012. Final order was passed on 23.07.2012 by the learned Sub-Divisional Magistrate directing the petitioners, who were opposite parties in the proceeding, to execute a bond of Rs. 5000/to keep peace for a period of one year. 3. This order dated 23.07.2012 passed by the Sub-Divisional Magistrate, Ramgarh in Misc. Case No.149 of 2011 was challenged by the petitioners in Criminal Appeal No.113 of 2012. Said Criminal Appeal stood dismissed vide order dated 11.06.2014 resulting in this application. 4. Learned counsel appearing for the petitioners submits that there is serious illegality and irregularity committed by the Sub-Divisional Magistrate while conducting the proceeding and this fact has been overlooked by the appellate court. Learned counsel for the petitioners further submits that the order of the Sub-Divisional Magistrate has been passed in utter violation of the principles of natural justice as no opportunity was given to cross-examine the witnesses. Relying on the lower court record he submits that the order dated 10.03.2012 shows that the case was fixed “on orders” and referring to the grounds in this memo of revision he submits that on the said date learned SubDivisional Magistrate in the open court verbally gave an impression that this proceeding is being dropped as such the petitioners did not appear in the further proceeding which prevented them from cross-examining the witnesses. He further submits that the Magistrate should have at least taken all coercive steps including issuance of warrant against petitioners to procure their appearance before the court and by not doing so, he has committed grave illegality which warrants interference by this court. 5. Learned counsel for the opposite party submits that the contention raised by the petitioners has got no legs to stand. 5. Learned counsel for the opposite party submits that the contention raised by the petitioners has got no legs to stand. He further submits that the extension of the proceeding, though was at the instance of opposite party No.2 (the first party), yet, the orders were passed after hearing the counsel for the petitioner i.e. opposite party to the proceeding. The counsel for the opposite party argues that since the time frame for the proceeding was extended in presence of both the parties to the proceeding, it cannot be said that petitioners were not aware of the pendency of the proceeding. He further submits that there is no violation of the principles of natural justice as the petitioners themselves had chosen to refrain from the proceedings, and did not cross examine the witnesses of the first party. Lastly, he submits that since the parties were present before the court through their lawyers, there was no occasion to issue warrant of arrest. 6. I have heard the submissions of the parties and gone through the lower court record. From the lower court record, I find that the proceeding was extended on 10.03.2012. The said extension was granted on the petition dated 21.02.2012 filed by the first party and the order was passed in presence of both the parties. This clearly suggests that both the parties have accepted and were in favour of extending the life of the proceeding. It is also apparent from the impugned orders that the petitioners did not appear in the proceeding for the reasons best known to them. It is also evident from the orders and also from the record that the petitioners were being represented through their lawyer before the Sub-Divisional Magistrate. Since petitioners were represented through lawyers, it cannot be said that the Magistrate was duty bound to issue any warrant. The contention of petitioners that there was an impression from the order dated 10.03.2012 that the proceeding has been dropped is also unfounded. Though the order dated 10.03.2012 mension “on orders” but the same was order for extension of time of the proceeding as the petition for extending time was also filed way back on 21.02.2012 which was heard in presence of both the parties. The impugned order dated 23.07.2012 very clearly suggests that the petition dated 21.02.2012 was heard in presence of the parties for extending the time. The impugned order dated 23.07.2012 very clearly suggests that the petition dated 21.02.2012 was heard in presence of the parties for extending the time. That being so, it cannot be inferred that the Sub-Divisional Magistrate had any intention to drop the proceeding. Further, since the petitioners themselves chose not to appear during the proceeding and not to cross-examine the witnesses, no fault can be found in the procedures adopted by the court. 7. From the discussions made above, I find that there is no illegality committed either by the Sub-Divisional Magistrate or by the Additional Sessions Judge. Thus, this application stands dismissed. 8. The interim orders stand vacated. The lower court record should be transmitted to the court below immediately.