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2019 DIGILAW 409 (JHR)

Ashok Singh v. State of Jharkhand

2019-02-08

SHREE CHANDRASHEKHAR

body2019
ORDER : 1. The petitioner seeks quashing of the entire criminal proceeding arising out of Mango (MGM) P.S. Case No. 264 of 2015 corresponding to G.R. Case No. 2017 of 2015 which has been registered on 05.07.2015 for the offence under section 406 and 420 IPC. 2. This first information report has been lodged by virtue of a direction by the Magistrate under section 156(3) Cr.P.C. in C/1 Case No. 956 of 2014. 3. The petitioner seeks quashing of the order dated 09.02.2016 by which warrant of arrest has been issued against him and the order dated 10.06.2016 by which process under section 82 Cr.P.C. has been issued against him. 4. By an order dated 28.09.2016, interim protection was granted to the petitioner directing that no coercive step shall be taken against the petitioner in connection with Mango (MGM) P.S. Case No. 264 of 2015 corresponding to G.R. Case No. 2017 of 2015. 5. The investigation in Mango (MGM) P.S. Case No. 264 of 2015, it appears, is still continuing. 6. The petitioner has produced the order-sheet in Mango (MGM) P.S. Case No. 264 of 2015 corresponding to G.R. Case No. 2017 of 2015. 7. Mr. B. B. Sinha, the learned counsel for O.P. No. 2 submits that the petitioner who has deceived O.P. No. 2 to deliver the vehicle to him by paying Rs. 1.25 Lac whereas the total sale consideration was Rs. 9 Lac has rightly been charged for the offence punishable under section 406 and 420 IPC. It is further submitted that the receipt of payment allegedly made by the petitioner, annexed to this quash-petition, on a bare perusal would reflect that those receipts are forged and fabricated documents. 8. A glance through the proceeding in G.R. Case No. 2017 of 2015 would disclose that a copy of the first information report was produced in the court on 07.07.2015. Thereafter, on a requisition of the investigating officer for warrant of arrest against the petitioner, non-bailable warrant of arrest has been issued vide order dated 09.02.2016. This order has no reference of the reasons why the investigating officer has requisitioned issuance of warrant of arrest against the petitioner. It simply records that a notice under section 41-A Cr. M.P. was issued to the accused-petitioner. This order has no reference of the reasons why the investigating officer has requisitioned issuance of warrant of arrest against the petitioner. It simply records that a notice under section 41-A Cr. M.P. was issued to the accused-petitioner. The order dated 09.02.2016 does not disclose that the investigating officer has recorded that being not satisfied with the response of the petitioner and finding that the petitioner is not co-operating with the investigation a requisition has been made for issuance of warrant of arrest against the petitioner. Exercise of powers under section 73 Cr.P.C. ensues serious consequence to an accused; it affects the liberty of an accused as guaranteed under Article 21 of the Constitution of India. The powers under section 73 Cr.P.C. therefore must be exercised by the Magistrate on his subjective satisfaction having formed on the basis of the materials brought before him. Time and again it has been said that the Magistrate is not a post-office; he cannot work like a machine. Mehmood UL Rehman vs. Khazir Mohammad Tunda and Others, AIR 2015 SC 2195 . 9. When the order dated 09.02.2016 is examined in the light of the powers conferred upon the Magistrate under section 73 Cr.P.C. and the mandatory requirements reflected in the statutory provision, I find serious infirmity in the approach of the learned Magistrate and while so, the order dated 09.02.2016 must go. For the same reason the order dated 10.06.2016 by which process under section 82 Cr.P.C. has been issued warrants interference of this Court. 10. Accordingly, the orders dated 09.02.2016 and 10.06.2016 stand quashed and Cr. M.P. No. 2128 of 2016 is allowed. However, it is made clear that the petitioner shall appear before the investigating officer in his office at 10.30 a.m. on 01.03.2019 or on any other day as indicated by the investigating officer.