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2022 DIGILAW 701 (JHR)

Dilip Singh @ Dilip Babu v. State of Jharkhand

2022-06-21

NAVNEET KUMAR

body2022
JUDGMENT : Learned counsel Mrs. J. Mazumdar for the petitioners and learned APP Mrs. Nehala Sharmin for the State are present. Nobody appears on behalf of the O.P. No.2 despite valid service of notice as evident from the office note dated 17.04.2015 and 8.6.2022. 2. Heard the learned counsels appearing on behalf of the parties present. 3. It appears that on order dated 11th April 2022, the order number is wrongly typed and it should be order No.5 in place of order of No.20 and now it should be correctly read as order No.5 in place of order No.20. 4. Learned counsel appearing on behalf of the petitioners submitted that the present Cr.M.P. has been directed against the order dated 08.12.1998 passed by the learned Judicial Magistrate, Dhanbad, whereby and where under learned court below was pleased to find prima facie case against the petitioners and other accused persons under Sections 384 and 379 of IPC and further prayer has also been made by the petitioners for quashing the order dated 28.01.2009, by which, the learned court below had issued non-bailable warrant against the petitioners by cancelling their bail without considering the representation filed by the petitioners under Section 317 of the Cr.P.C. and further the order dated 03.10.2012, by which permanent warrant of arrest against the petitioners were issued by declaring them absconder in C.P. Case No. 829/1998. 5. Learned counsel appearing on behalf of the petitioners submitted that the complainant O.P. No.2 was a student and preparing for competition and residing at Patna in Nalanda Coaching Centre for Engineering Course and he was suffering from acute jaundice, so he came to his house for his treatment and precaution and thereafter the O.P. No.2 was undergoing treatment and while he was not well and he was on bed rest, it was alleged by the O.P. No.2 that on 11.08.1998 at about 11.00 am, the petitioners along with other co-accused persons forcefully entered into his house and enquired about one Arjun Chouhan, upon which the O.P. No.2 and his brother Munna @ Ajit Chouhan told them that said Arjun Chouhan had gone to Dhanbad and thereafter the accused persons assaulted the complainant and his brothers and took out a sum of Rs. 225 from the pocket of the complainant and Rs.90 from the brother of the complainant Suchit Chouhan. 225 from the pocket of the complainant and Rs.90 from the brother of the complainant Suchit Chouhan. It has further been alleged that the accused persons had taken the complainant and his brother to Dhanbad, Excise Hazat and put him in the Excise Hazat and later on released the complainant because he was not well and demanded a sum of Rs.5,000/-from the complainant O.P. No.2 to release his brother and it is further alleged that if the demand is not fulfilled by the complainant and his brothers, they would implicate the Ajit Chauhan in false excise case and the reason for implication is that the Excise took some monthly amount from phulari Tand Kalali and the manager and staff used to do illegal business in the shadow of Kalali which was regularly objected by the complainant’s brother Arjun Chouhan. 6. It has been pointed out by the learned counsel for the petitioners that these two petitioners have been falsely implicated in this case in view of the fact that the petitioners are the excise officials and had taken punitive action against the brother of the O.P. No.2 namely Munna Chauhan, for which a case under Section 47(A) of Excise Act was instituted against his brother and 15000 liters country made liquor was recovered from his brother Munna Chauhan and the present complaint case was instituted by the O.P. No.2 for the same offence dated 11.08.1998 for which a case under Section 47(A) of Excise Act was instituted against the brother of the O.P. No.2 Munna Chauhan in order to malign and this complaint is a counter blast to the action taken by the petitioners while they were discharging their official duty being excise officials against the brother of the O.P. No.2, from whom the illicit liquor was recovered. 7. 7. It has further been pointed out that the impugned order dated 08.12.1998, under which prima facie case was found against these petitioners is bad in law as it shows non-application of judicial mind as the court below did not disclose any ingredients for the offence punishable under Sections 384 or 379 of IPC and simply a sweeping observation has been made with respect to the perusal of the complaint petition, his statement recorded on S.A. and the evidence of CW – 1 Sudarshan Chauhan, CW – 2 Ajit Chauhan and CW – 3 Shambhu Chauhan without disclosing the ingredients for the offence punishable under Sections 379 and 384 of IPC and also further the involvement of the petitioner in the commission of offence and therefore the order is bad in law. 8. 8. Further the learned counsel appearing on behalf of the petitioners has pointed out that the order dated 28.01.2009, by which, the bail of the petitioners were cancelled and non-bailable warrant of arrest was directed to be issued despite the fact that an application under Section 317 of Cr.P.C. was given before the learned court below and further it has been pointed out that the learned court below has been taking steps for securing the attendance of the accused persons, but actually it never came into knowledge of the petitioners and thereafter the learned court below in a mechanical manner, on 03.10.2012 declared the petitioner as permanent absconder and a permanent warrant of arrest was issued against them, although, it has been pointed out that the processes issued against them under Sections 82 and 83 of Cr.P.C. have not been complied with as per the provisions of law and one and after the steps have been taken by the learned court below without ensuring that the execution report has been received by the learned court below or not, which is evident from the certified copies of the orders filed by the petitioners dated 17.03.2011, 26.05.2011, 01.07.2011 and 05.08.2011, by which, it appears that without receipt of the service report/execution report, the processes under Sections 82 and 83 of Cr.P.C. have been issued by the learned court below, which is also bad in law and therefore all the orders passed by the learned court below including the order dated 08.12.1998, by which the cognizance was taken, order dated 28.01.2009, by which, the bail was cancelled and NBW was issued and order dated 03.10.2012, by which, the petitioners were declared absconder and permanent warrant of arrest was issued against petitioners, which are also bad in law and fit to be dismissed. 9. Learned APP appearing on behalf of the state submitted that let the petitioners be directed to appear in the Court below and face the trial after setting aside the orders for the ends of justice and with this direction, this Cr.M.P. may be disposed of. 10. Having heard the learned counsel for both the sides and perused the record. 11. Learned APP appearing on behalf of the state submitted that let the petitioners be directed to appear in the Court below and face the trial after setting aside the orders for the ends of justice and with this direction, this Cr.M.P. may be disposed of. 10. Having heard the learned counsel for both the sides and perused the record. 11. At the outset, it is found that the order taking cognizance dated 8th December 1998, by which, it appears that the learned court below does not apply its judicial mind and did not disclose the ingredients for constituting the offence punishable under Sections 384, or 379 of IPC nor specific role of these petitioners have been specified in the commission of the offence and therefore the order for issuing the summon dated 08.12.1998 is bad in law and therefore this order dated 08.12.1998 does not hold good in the eyes of law. Consequently, the order dated 28th January 2009, by which, the bail of the petitioners have been cancelled and non-bailable warrant of arrest was issued, also became redundant and further the subsequent order dated 3.10.2012, by which, the permanent warrant of arrest were issued against the petitioners by declaring them absconder are also bad in law, inasmuch as the learned court below did not follow the provisions of issuance of processes under section 82 or 83 of Cr.P.C. as discussed elaborately in the case of Md. Rustum Alam @ Rustam & Ors. Vs. The State of Jharkhand as reported in 2020 (2) JLJR 712 . 12. Having taking into consideration the aforesaid facts and submission of the parties, this Cr.M.P. is allowed and orders passed by the learned court below, including the order dated 08.12.1998, the order dated 28.01.2009, and the order dated 03.10.2012, are quashed.