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2017 DIGILAW 197 (JHR)

Purushottam Prasad v. State Of Jharkhand

2017-01-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Defect no. 9(viii) as pointed out by the office is ignored. I.A. No. 57 of 2017 : In this interlocutory application the petitioners have prayed for amending the para 1 and prayer portion of the main application in view of the issuance of proclamation and process under Sections 82 and 83 of the Cr.P.C. respectively vide orders dated 16.01.2015 and 30.01.2015. 2. It has been stated by the learned counsel for the petitioners that the issuance of process was not known to the petitioners as such they could not make a challenge to the same in the main application. 3. It appears that initially the petitioners have challenged the initiation of the entire criminal proceedings. However, the petitioners intend to challenge the issuance of processes under Sections 82 and 83 of the Cr.P.C. Since the amendment which has been sought for has a direct nexus with the prayer made in the main application and in order to avoid multiplicity of proceeding, this interlocutory application is allowed. 4. I.A. No. 57 of 2017 is allowed and disposed of. 5. Let I.A. No. 57 of 2017 be treated as a part of the main application. Cr.M.P. No. 1358 of 2016 : 6. Heard Mr. Nilesh Kumar, learned counsel appearing for the petitioners and Mr. Ashish Jha, learned A.P.P. for the state party. 7. In this application, the petitioners have prayed for quashing of the entire criminal proceedings in connection with CF Case No. 109 of 2003 including the order dated 01.08.2012 by which cognizance has been taken for the offences punishable under Sections 33, 41 and 42 of the Indian Forest Act. Pursuant to the amendment application having been allowed in I.A. No. 57 of 2017 the petitioners have also made challenge to the orders dated 16.01.2015 and 30.01.2015 by virtue of which process under Section 83 Cr.P.C. has been issued and the petitioners have been declared as absconder and permanent warrant of arrest has been issued against them. 8. At the outset, Mr. Nilesh Kumar, learned counsel for the petitioner, submits that at the present moment he is confining his argument only with respect to the orders dated 16.01.2015 and 30.01.2015. 8. At the outset, Mr. Nilesh Kumar, learned counsel for the petitioner, submits that at the present moment he is confining his argument only with respect to the orders dated 16.01.2015 and 30.01.2015. It has been stated by the learned counsel for the petitioners that the case was instituted in the year 2005 and in the year 2012 cognizance has been taken and thereafter bailable warrant of arrest and non-bailable warrant of arrest have been issued. 9. It has been stated that without there being any order with respect to issuance of proclamation under Section 82 Cr.P.C. straightway process under Section 83 of the Cr.P.C. has been ordered to be issued on 16.01.2015 and in absence of any execution report on 30.01.2015 the petitioners were declared absconders and permanent warrant of arrest was ordered to be issued against them. It has been stated that the impugned orders are not sustainable in the eye of law in view of the fact that the petitioners were never aware of the issuance of non-bailable warrant as well as the subsequent coercive steps which have been taken by the learned court below. 10. Learned A.P.P. has opposed the prayer made by the petitioners. 11. It appears from the order sheet that there is no direction for issuance of proclamation under Section 82 of the Cr.P.C. and only on 16.01.2015 the process under Section 83 Cr.P.C. has been ordered to be issued and in absence of the petitioners appearing and without there being any execution report the order dated 30.01.2015 under Section 299 of the Cr.P.C. has been passed. 12. Both the orders does not reflect the subjective satisfaction on the part of the learned Magistrate and there being apparent illegality as issuance of process under Section 82 Cr.P.C. was straightway after issuance of non-bailable warrant of arrest against the petitioners, the impugned orders being not sustainable in the eye of law are, hereby, quashed and set aside. 13. This application is allowed to the extent mentioned herein above. 14. It is once again made clear that since the petitioners have confined their arguments only with respect to the coercive steps taken against the petitioners this Court has not expressed any opinion on the merits of the case, so far as the prayer made by the petitioners for quashing of the entire criminal proceedings is concerned.