Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1164 (JHR)

Ritesh Roshan @ Ritesh Singh v. State of Jharkhand

2023-09-18

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding including the F.I.R. in connection with Barhi P.S. Case No. 155 of 2016, corresponding to G.R. Case No. 1869 of 2016 registered for the offences punishable under Sections 420, 467, 468, 469 and 471 and also prayed for quashing of the order dated 28.11.2022 passed by the said court in that case; by which the non-bailable warrant of arrest was issued inter alia against the petitioners and also to quash the order dated 12.12.2022 by which the proclamation under Section 82 Cr.P.C. has been issued by the learned Judicial Magistrate 1st Class, Hazaribagh. 3. The brief facts of the case is that upon getting secret information that the truck loaded with illegally extracted coal having forged documents in support of such coal was transported illegally, the informant police officer along with armed police party stopped four different trucks including the truck of petitioner no.1 bearing registration no.JH09R-9083 and truck of the petitioner no.2 bearing registration no.JH02AD-6447 but the drivers fled away with the truck after leaving the documents. From the same, a suspicion arose in the mind of the informant police officer and the remaining three trucks were seized by the police. During the course of investigation, it was found inter alia that the petitioners were transporting coal outside the State of Jharkhand on the basis of forged documents. Hence, the FIR was registered. 4. On 28.11.2022, the I.O. intimated the learned Judicial Magistrate 1st class, Hazaribagh that he sent three times to the accused persons house but it has not been mentioned as to what was sent by the I.O. from the said order of the learned Magistrate but the said order dated 28.11.2022 of the learned Magistrate further discloses that apparently communication was sent by the I.O. inter alia against the petitioners for their appearance but they were concealing themselves. It has further being mentioned in the said order dated 28.11.2022 that the I.O. of the case went three times to arrest the accused petitioners of this criminal miscellaneous petition being 10.11.2022, 11.11.2022 and 21.11.2022 as mentioned in paragraph nos.155, 162 and 168 of the case diary but the accused petitioners did not appear and they are evading their arrest and concealing themselves. The I.O. also made effort to arrest the accused persons but as the accused persons are concealing themselves and evading their arrest, he could not do so and being thus satisfied; the learned Magistrate allowed the prayer for issuance of non-bailable warrant of arrest under Section 73 of Code of Criminal Procedure. 5. That on 12.12.2022, the learned Magistrate took up petition dated 06.12.2022 filed by the I.O. and in the said petition, prayer was made for issuance of the proclamation under Section 82 Cr.P.C. against the two petitioners of this criminal miscellaneous petition. 6. The learned Magistrate on perusal of the execution report of non-bailable warrant of arrest was convinced that the petitioners were absconding; as though on 03.12.2022 and 05.12.2022 the I.O. of the case went for arresting them but they were found absconding as mentioned in the defendant paragraphs of the case diary. Hence, the learned Magistrate allowed the prayer for issuance of proclamation under Section 82 Cr.P.C. and fixed 25.01.2023 at 12:00 am for the appearance of the petitioners before it. 7. Learned counsel for the petitioners submits that the petitioners were not named in the FIR and they have been implicated in this case only on the basis of challan which were alleged to be seized by the informant. It is further submitted by the learned counsel for the petitioners that the truck number given in the challan belongs to the petitioners and they are the registered owners of the said two trucks of which the respective drivers fled away after leaving the documents related to the said trucks with the police and save and except the challan, which is stated to be forged, there is no material to implicate the petitioners in this case. It is then submitted by the learned counsel for the petitioners that though in the prayer for issue of warrant of arrest, the I.O. of the case has stated that he went three times to the house of the petitioners but as a matter of fact he never went to the house of the petitioners. It is then submitted by the learned counsel for the petitioners that the petitioners filed anticipatory bail application on 26.11.2022 which was finally heard on 22.12.2022. It is then submitted by the learned counsel for the petitioners that the petitioners filed anticipatory bail application on 26.11.2022 which was finally heard on 22.12.2022. It is further submitted by the learned counsel for the petitioners that no reason or any subjective satisfaction has been assigned or given by the learned Magistrate for issuing of the non-bailable warrant of arrest and within a gap of 15 days after issuing of non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C. has been issued. It is next submitted by the learned counsel for the petitioners that the execution report of N.B.W. has not been attached hence, the said order be quashed; as the proclamation under Section 82 Cr.P.C. has been made in hot haste. Hence, it is submitted that entire criminal proceeding including the F.I.R. in connection with Barhi P.S. Case No. 155 of 2016, corresponding to G.R. No. 1869 of 2016, order dated 28.11.2022 and order dated 12.12.2022 be quashed and set aside. 8. Learned Additional Public Prosecutor on the other hand vehemently opposes the prayer for quashing of the entire criminal proceeding including the F.I.R. in connection with Barhi P.S. Case No. 155 of 2016, corresponding to G.R. No. 1869 of 2016, as well as the order dated 28.11.2022 and order dated 12.12.2022; passed by that court in the said case. So far as the prayer for quashing of FIR is concerned, it is submitted by learned Additional Public Prosecutor that there is direct and specific allegation against the petitioners of having committed the offences of forging for the purpose of cheating and using forged documents as genuine and also of cheating. The case is at the nascent stage and the investigation of the case is going on. The genesis of the alleged forged document can only be verified after the investigation of the case is over but since the allegation are sufficient to constitute the offence for which the FIR has been registered hence, the entire criminal proceeding including the F.I.R. in connection with Barhi P.S. Case No. 155 of 2016, corresponding to G.R. No. 1869 of 2016 ought not be quashed. 9. 9. So far as the prayer for quashing of the order dated 28.11.2022 is concerned, it is submitted by learned Additional Public Prosecutor that it is the specific contention of the I.O. of the case that he visited the house of the petitioner thrice but they were evading their arrest and the learned Magistrate on the basis of the averments made by the I.O. which was supported by the contents of the case diary became satisfied that the petitioners are evading their arrest and undisputedly, they are accused of the case involving non-bailable offences punishable under Sections 420, 467, 468, 469 and 471 of Indian Penal Code hence, issued the non-bailable warrant of arrest under Section 73 Cr.P.C. Hence, it is submitted that; no illegality has been committed by the learned Magistrate in passing the said order and thus, the prayer for quashing the order dated 28.11.2022 is not sustainable in law. 10. So far as the order dated 12.12.2022 is concerned, it is submitted by learned Additional Public Prosecutor that the Code of Criminal Procedure does not prescribe any time period beyond which only the proclamation under Section 82 Cr.P.C. is to be issued so, merely, because the same was issued after 15 days, from the order of issuing non-bailable warrant of arrest that itself is irrelevant to judge the validity or otherwise of the order dated 12.12.2022 passed by the learned Magistrate. It is further submitted by learned Additional Public Prosecutor that the only requirement for exercising the power to issue proclamation under Section 82 Cr.P.C. by a court is that if the court is satisfied that person against whom the warrant of arrest issued, is absconding or concealing himself so that warrant of arrest cannot be executed; the Court can issue the proclamation and in this case, the learned Magistrate by a detailed order has categorically observed that from the averments made by the I.O. as well as the paragraph nos. 188, 194 and 196 of the case diary; police tried to execute the non-bailable warrant of arrest but as the petitioners were absconding and concealing themselves; so the same cannot be executed and otherwise also, there is no illegality in the said order dated 12.12.2022. 188, 194 and 196 of the case diary; police tried to execute the non-bailable warrant of arrest but as the petitioners were absconding and concealing themselves; so the same cannot be executed and otherwise also, there is no illegality in the said order dated 12.12.2022. It is then submitted by learned Additional Public Prosecutor that the contention of the learned counsel for the petitioners that there is no execution report of the non-bailable warrant of arrest is falsified from the fact that; the order dated 12.12.2022 itself shows that the petition filed by the I.O. was annexed with the report containing the reason why the non-bailable warrant of arrest cannot be executed. It is further submitted that the petitioner no.2 consequent upon non-bailable warrant of arrest being issued against him appeared before the court and has been released on bail on 31.01.2023. Hence, the prayer to quash the order dated 28.11.2022 and 12.12.2022 has become infructuous so far as the petitioner no.2 is concerned. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that so far as the prayer for quashing the entire criminal proceeding including the FIR is concerned, there is specific allegation against the petitioners that the petitioners have forged documents for the purpose of cheating and used the said documents as genuine. The case is at a nascent stage of investigation. 12. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Monica Kumar (Dr. )and Another vs. State of Uttar Pradesh and others reported in (2008) 8 SCC 781 that a legitimate prosecution cannot be stifled in exercise of the jurisdiction under Section 482 Cr.P.C. by the High Court. As there are ample averments in the FIR to array the petitioners as accused of this case, only because the allegations against the petitioners are false; certainly, the same cannot be the ground to quash the entire criminal proceeding including the FIR. The same can be a defence which an accused person can take at the appropriate stage of the trial of the case or contend before the IO of the case during the investigation. 13. The same can be a defence which an accused person can take at the appropriate stage of the trial of the case or contend before the IO of the case during the investigation. 13. Under such circumstances, this Court is of the considered view that there is no justifiable reason to quash the entire criminal proceeding including the FIR in connection with Barhi P.S. Case No. 155 of 2016, corresponding to G.R. No. 1869 of 2016. 14. So far as the order dated 28.11.2022 is concerned, the requirement of issuance of a warrant of arrest is inter alia that a person against whom the warrant of arrest is issued is accused of a non-bailable offence and he is evading his arrest. 15. Now coming to the facts of the case, there is no dispute that the I.O. of the case is a public servant and in course of his duty, he prepared the case diary and undisputedly, in the case diary, it has been mentioned that three times he went to arrest the petitioners; but the arrest could not be effected as the petitioners were absconding and concealing themselves to evade their arrest. 16. It is a settled principle of law that if Chief Judicial Magistrate or the Judicial Magistrate 1st Class is satisfied that the accused of a case is involved in non-bailable offence and is evading his arrest, it can issue warrant of arrest under Section 73 Cr.P.C. 17. Now the contention of the learned counsel for the petitioners that police never went to the house of the petitioners but made a false entry in the case diary is concerned, it amounts to casting aspersions on the integrity of the I.O. but there is no material in the record to suggest that any complaint was made to any of the superior authority of the I.O. regarding this alleged misconduct on his part. Under such circumstances, this Court is of the considered view that the contention of the learned counsel for the petitioners that I.O. did not go to the house of the petitioners ever but falsely claimed that on three occasions he went to arrest the petitioners cannot be a justifiable reason for quashing the order dated 28.11.2022. 18. Under such circumstances, this Court is of the considered view that the contention of the learned counsel for the petitioners that I.O. did not go to the house of the petitioners ever but falsely claimed that on three occasions he went to arrest the petitioners cannot be a justifiable reason for quashing the order dated 28.11.2022. 18. Under such circumstances, this Court is of the considered view that there is no justifiable reason to quash the order dated 28.11.2022 passed by the learned Judicial Magistrate 1st Class, Hazaribagh. It is needless to mention, that the said prayer in respect of the petitioner No. 2 has become infructuous; as he has already surrendered and released on bail. 19. So far as the order dated 12.12.2022 is concerned, it is pertinent to mention here that Code of Criminal Procedure does not prescribe minimum time period after issuance of non-bailable warrant of arrest of which; the proclamation under Section 82 Cr.P.C. can be issued. The only requirement for issuing proclamation under Section 82 Cr.P.C. is that; in respect of the person against whom the warrant has been issued by the court; has absconded or his concealing himself so that such warrant cannot be executed and the court issuing the proclamation becomes satisfied about the same. When the statute itself, do not prescribe a minimum period for which the court must wait for issuing the proclamation under section 82 of the Code of Criminal Procedure after the issue of the non-bailable warrant of arrest; certainly it would not be fair and proper to find fault with the issue of the proclamation under section 82 of the Code of Criminal Procedure; merely because the proclamation under section 82 was issued within a short span of time from the date of issuance of the non-bailable warrant of arrest. 20. Now coming to the facts of the case, in the order dated 12.12.2022 itself, the learned Magistrate; on the basis of the entry made in the case diary was satisfied that on two separate dates, the I.O. of the case went to execute the non-bailable warrant of arrest but as the petitioners were absconding or concealing themselves, the I.O. could not execute the warrant of arrest. Under such circumstances, this Court has no hesitation in holding that the prayer to quash the order dated 12.12.2022 is without any merit. Under such circumstances, this Court has no hesitation in holding that the prayer to quash the order dated 12.12.2022 is without any merit. This Court does not find any illegality in the order dated 12.12.2022 passed by the learned Judicial Magistrate 1st Class, Hazaribagh. 21. Accordingly, this criminal miscellaneous petition being without any merit is dismissed.