Arvind Singh vs State of Jharkhand

Heard learned counsel for the parties.

In this criminal miscellaneous petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the orders

dated 15.04.2019 and 17.05.2019, passed by the Additional Chief Judicial Magistrate, Ghatshila in C/2 Case No. 181 of 2012, whereby, according to

the petitioner, proclamation under Section 82 Cr.P.C. and order of attachment under Section 83 Cr.P.C. has been issued against him.

By an interlocutory application being I.A. No. 9857 of 2019, the petitioner also challenged the order dated 28.06.2019, by which permanent warrant of

arrest has been issued against the petitioner declaring him as an absconder.

It be noted that when I go through the certified copy of the entire order sheets, I find that there is no judicial order, which is dated 15.04.2019,

rather there is a note on the margin of the order dated 18.01.2019, which is as follows:-

Issued 82 upon Arbind Singh on 15/04/19

On query, learned counsel appearing for the petitioner submits that he has challenged the aforesaid note. .

In fact, in this application under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the issuance of proclamation made

under Section 82 Cr.P.C. and the order of attachment of his property in terms of Section 83 Cr.P.C.

Learned counsel appearing for the petitioner submits that without any order, in the margin column, process under Section 82 Cr.P.C has been

issued. He submits that there is no recording of any subjective satisfaction for issuing process under Section 82 Cr.P.C. He submits that it is the

mandate of law that the Court must have some reasons to believe that the person has absconded or is concealing himself so that warrant cannot be

executed. He submits that in absence of such satisfaction, the process under Section 82 Cr.P.C. cannot be issued. He submits that the order of

attachment dated 17.05.2019 is also bad as no reason has been recorded, which is also the mandate of Section 83 Cr.P.C. He further submits that the

order dated 28.06.2019 is also bad as the previous two orders, i.e. the orders under Sections 82 & 83 Cr.P.C. are bad.

Learned A.P.P. submits that since the petitioner did not appear, the impugned orders were passed and there is no illegality in the impugned orders.

After going through the orders sheets, both, i.e. the certified copy and the original, which were called for by the previous order dated 04.12.2019, I

find that an order sheet was drawn up on 22.06.2016, wherein process under Section 82 Cr.P.C. was directed to be issued. The original order sheet,

which is before me, clearly suggests that the same was not signed by the Magistrate. The aforesaid order dated 22.06.2016, whereby process under

Section 82 Cr.P.C. has been issued, is absolutely bad and is an illegal order as it does not conform with the requirement of Section 82 Cr.P.C. Section

82 Cr.P.C. provides that there must be some reasons before the Court upon which the Court should believe that the person against whom warrant has

been issued, has absconded or is concealing himself so that warrant cannot be executed. The aforesaid unsigned order does not reflect any

satisfaction. Thus the same order is against the provision of Section 82 Cr.P.C. Moreover, the said order is unsigned. Thus, I have no other alternative

but to quash the order dated 22.06.2016.

Similarly, the order dated 17.05.2019, by which process under Section 83 Cr.P.C. has been issued, is also a non-speaking and an unreasoned order

and does not reflect any reason as required under Section 83 Cr. P.C. Thus, this one lined unreasoned order is also liable to be quashed and is hereby

quashed.

As both the orders, i.e. the orders dated 22.06.2016 and 17.05.2019 are unreason one and do not reflect any satisfaction as envisaged under

Sections 82 & 83 Cr.P.C., have already been set aside, consequential order dated 28.06.2019, declaring the petitioner absconder, is also hereby

quashed. The court below is directed to pass a fresh order in accordance with law after application of mind and giving reasons as required while

passing an order under Sections 82 & 83 Cr.P.C.

This application stands allowed.