Research › Search › Judgment

Patna High Court · body

2022 DIGILAW 744 (PAT)

Pinki Kumari v. State of Bihar

2022-08-26

RAJEEV RANJAN PRASAD

body2022
ORDER Heard learned counsel for the petitioners, Mr. Deepak Kumar, learned AC to GP 4 for the State and Mr. Saroj Kumar, learned counsel for the informant-respondent no. 5. 2. This application has been filed seeking the following reliefs:— “(A) A writ in the nature of Certiorari or any other appropriate writ/s, order/s direction/s quashing the following: (i) Order dated 04.06.2022 passed by the Ld. Additional District & Sessions Judge 1st cum Special Judge, Lakhisarai, in Halsi Ramgarh Chowk P.S. Case No. 2 of 2022 whereby, the Ld. Court below has directed for publication of proclamation against the Petitioners as envisaged under Section 82 of Code of Criminal procedure (hereinafter also referred to as ‘Cr.P.C.’). (B) A writ in the nature of mandamus or any other appropriate writ/s, order/s direction/s for the following reliefs: (i) To stay further proceeding in FIR being Halsi Ramgarh Chowk P.S. case no. 2 of 2022 pending before Ld. Additional District & Sessions judge 1st cum Special judge, Lakhisarai, till disposal of the instant case. (ii) To declare the investigation done in F.I.R. being Halsi Ramgarh Chowk P.S. Case No. 2 of 2022 without jurisdiction rendering the entire investigation as null and void. (C) To any other relief/s to which the petitioner is found entitled to.” 3. Learned counsel for the petitioners submits that he will confine his prayers to part (A) (i) under paragraph ‘1’ of the writ application. Thus, the prayers made in part (B) under paragraph ‘1’ are not pressed. 4. Learned counsel for the petitioners has assailed the impugned order dated 04.06.2022 passed by learned Additional District Judge-I at Lakhisarai in Halsi (Ramgarh) P.S. Case No. 02 of 2022. 5. By this order, the learned court below has directed publication of proclamation against the petitioners. 6. Learned counsel for the petitioners submits that the impugned order is in the teeth of the mandatory provision of Sections 82 and 83 Cr.P.C. It is submitted on the strength of the judgments of this Court in the case of Krishna Murari Yadav vs. The State of Bihar reported in 2005 (3) PLJR 746 and in the case of Usha Mishra vs. The State of Bihar & Ors. reported in 2007 (3) PLJR 748 that the I.O. who filed an application seeking issuance of an order for proclamation should have filed an application on affidavit duly showing the steps taken by him to catch hold of the petitioners. It is submitted that the learned court below has not at all tried to find out as to whether the I.O. has taken efforts to execute the warrant of arrest. The case diary was not perused and nothing was pointed out to the court from the case diary. Referring to yet another judgment of this Court in the case of Anil Kumar @ Anil Paswan vs. State of Bihar and others reported in 2020 (2) BLJ 507, learned counsel submits that in the said case, this Court has discussed the mandatory nature of Section 82 Cr.P.C. 7. It is further submitted that the petitioners had filed an application on 12.04.2022 after serving a copy on the Special P.P. for the State in which they had brought to the notice of the learned court below that they have filed an anticipatory bail application in the Hon’ble High Court of Patna vide Cr. Appeal (SJ) No. 647 of 2022 and Cr. Appeal (SJ) No. 681 of 2022 and the same are pending consideration before the Court. 8. Today, learned counsel has informed that in both the Criminal Appeals (SJ), a learned Co-ordinate Bench of this Court has granted interim protection to the petitioners recently and both the applications are pending. 9. It is, thus, submitted that the order dated 04.06.2022 has been passed in haste without following the procedures described under Sections 82 and 83 Cr.P.C. 10. Learned counsel for the informant-respondent no. 5 has defended the impugned order. It is his submission that only because the petitioners were before this Court seeking anticipatory bail, the same cannot be a ground to interfere with the order dated 04.06.2022. Learned counsel submits that there is no law that until anticipatory bail application of the accused is heard, he cannot be proceeded against under Sections 82 and 83 Cr.P.C. 11. Mr. Deepak Kumar, learned AC to GP 4 has though defended the order on behalf of the State but going through the procedures prescribed under Sections 82 and 83 Cr.P.C., learned counsel has submitted that the order dated 04.06.2022 does not show compliance with those procedures. 12. Mr. Deepak Kumar, learned AC to GP 4 has though defended the order on behalf of the State but going through the procedures prescribed under Sections 82 and 83 Cr.P.C., learned counsel has submitted that the order dated 04.06.2022 does not show compliance with those procedures. 12. Having heard learned counsel for the parties and learned counsel for the State as also on perusal of the record, this Court is of the considered opinion that the impugned order has been passed by a learned court below in a complete haste that too without looking into the informations furnished by the petitioners in their petition dated 12.04.2022. This Court finds from the records that the I.O. had filed a half page application in which he had vaguely stated ^^mi;qDr izlaxkèkhu fo"k; ds lanHkZ esa lknj iwoZd lwfpr djuk gS fd izlkafxd dkaM ds uketn vfHkñ ¼1½ lquhy jk; ¼2½ fiadh dqekjh nksuks isñ ckys'oj jk; lkñ uUnukek ¼iSxEcjiqj Vksyk½ Fkkuk jkexढ+pkSd ftyk y[khljk; ds ?kj fxjÝrkjh gsrq Nkikekjh fd;kA Nkikekjh ds Øe esa iQjkj ik;k rFkk fxjÝrkjh ds Hk; ls Hkkxs fQj jgk gSA fuxZr okjaV okil fd;k tkrk gSA vfxze dkjokbZ gsrqA vr% Jheku ls fuosnu gS fd mDr vfHkñ ds fo:) bf'rsgkj fuxZr djus dh d`ik iznku dh tk;A** 13. The aforesaid application was not supported by any affidavit and nothing was indicated from the case diary as to when and what efforts were made by the I.O. to execute the warrant. There is nothing to indicate that the I.O. had ever sent any notice calling upon the accused persons to appear in the police station for purpose of interrogation. Recently, in the case of Krishna Mohan Lal & Anr. vs. The State of Bihar (Cr. Misc. 1118 of 2021) [: 2022 (3) BLJ 74 ] this Court had occasion to consider a case wherein the petitioners were seeking anticipatory bail in this Court and during pendency of their application process under Section 82 was issued. The said judgment has not been interfered with by the Hon’ble Supreme Court in SLP (Crl)No. 001386/2022. 14. Misc. 1118 of 2021) [: 2022 (3) BLJ 74 ] this Court had occasion to consider a case wherein the petitioners were seeking anticipatory bail in this Court and during pendency of their application process under Section 82 was issued. The said judgment has not been interfered with by the Hon’ble Supreme Court in SLP (Crl)No. 001386/2022. 14. It is evident from a bare perusal of the impugned order that the learned court below has proceeded to pass the order in a routine and mechanical manner only by quoting one line from the application of the I.O. For a ready reference the impugned order dated 04.06.2022 is being reproduced hereunder:— ^^vuqlaèkkudrkZ dh vksj ls bl okn esa izkFkfedh uketn vfHk;qDrx.k ¼1½ lquhy jke ,oa ¼2½ fiadh dqekjh nksuks isñ&ckys'oj jke dh vksj ls mDr vfHk;qDrx.k ds fo:) bf'rgkj fuxZr djus ds fy, ,d vkosnu nkf[ky fd;k x;kA vuqlaèkkudrkZ vkxs fuosnu djrs gSa fd mDr vfHk;qDrx.k Nkikekjh esa Øe esa Qjkj ik;k tkrk gSA vr% okn dh vfxze dkjokbZ gsrw bf'rgkj fuxZr djus dh vuqefr nh tk;A ns[kkA vfHkys[k dk voyksdu fd;k] ftlls fofnr gksrk gS fd okn vHkh vuqlaèkku ds vUrxZr gSaA mDr vfHk;qDr.xk bl okn esa okafNr gSA vr% okn esa vxzsrj dkjokbZ gsrw izkFkZukuqlkj mDr vfHk;qDrx.k ds fo:) bf'rgkj fuxZr djus dh vuqefr nh tkrh gSA ys[kkfir** 15. So far as the contention of learned counsel for the informant that there is no absolute rule that 82-83 Cr.P.C. process cannot be issued during pendency of anticipatory bail application is concerned, this Court would agree that neither there is such absolute rule nor any such absolute guideline may be laid down. Every case has its own peculiar facts and the order issuing process under Section 82-83 Cr.P.C. would be required to be tested in the totality of the circumstances keeping in view the interest of justice. 16. This Court cannot remain oblivious of the fact that we have adversary system of law in which hundreds of culprits may go scot-free but one innocent cannot be hanged. Therefore, a Court of Law while exercising its power that too a drastic power such as under Section 82 and 83 Cr.P.C. will be required to act with more circumspection and care in the matter of passing of such orders. 17. Therefore, a Court of Law while exercising its power that too a drastic power such as under Section 82 and 83 Cr.P.C. will be required to act with more circumspection and care in the matter of passing of such orders. 17. In this case, this Court is of the considered opinion that the impugned order has been passed in complete violation of law and the judgments on the subject. 18. In the circumstances, the impugned order dated 04.06.2022 passed by learned A.D.J.-I, Lakhisarai is hereby set aside. 19. This application is allowed.