Budhan Ganjhu @ Budhwa Ganjhu vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the orders dated 18.06.2012 and 20.08.2018 by which the proclamation under Section 82 of Cr.P.C. were issued and the orders dated 24.07.2012 and 15.07.2019 by which the attachment order of the property of the petitioner has been issued under Section 83 of Cr.P.C.; all the said four orders passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012.

The brief fact of the case is that on 18.06.2012 the I.O. of the case submitted an application with a prayer for proclamation under Section 82 Cr.P.C. The learned Judicial Magistrate, Hazaribagh by a single sentence order, without recording any satisfaction that the petitioner is absconding or concealing himself to evade his arrest or fixing any time or place for appearance of the petitioner issued the proclamation under Section 82 of Cr.P.C. On 20.08.2018 the petitioner who is the accused person of the case was absent and by a single sentence order, again the learned Judicial Magistrate, Hazaribagh has issued the proclamation under Section 82 of Cr.P.C. On 24.07.2012 without any material in the record that the proclamation under Section 82 Cr.P.C. was issued, the learned Judicial Magistrate, Hazaribagh issued the order of attachment of the property of the petitioner who is the accused person of the said case. Similarly, on 15.07.2019 as the petitioner who is the accused person of the said case was absent, the learned Judicial Magistrate, Hazaribagh by a single sentence order issued attachment order of the property of the petitioner.

Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued vide order dated 18.06.2012 and 20.08.2018 without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C. that too without fixing any time and place for the appearance of the petitioner. It is next submitted by the learned counsel for the petitioner that without any information available in the record that the proclamation under Section 82 Cr.P.C. was ever made, the learned Judicial Magistrate, Hazaribagh passed an order for attachment of the property of the petitioner under Section 83 of Cr.P.C. without mentioning the description of the property to be attached vide orders dated 24.07.2012 and 15.07.2019. Hence, it is submitted that the orders dated 18.06.2012, 20.08.2018, 24.07.2012 and 15.07.2019 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012, be quashed and set aside.

Learned Public Prosecutor appearing for the State vehemently opposes the prayer made by the petitioner in this criminal miscellaneous petition. It is next submitted by the learned Public Prosecutor that the very fact that the learned Judicial Magistrate, Hazaribagh has issued the proclamation under Section 82 of Cr.P.C. and the order of attachment under Section 83 of Cr.P.C. itself shows that there were materials available in the record for the learned Judicial Magistrate, Hazaribagh to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that by now it is a settled principle of law that the court which issues the proclamation under Section 82 of Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of Cr.P.C., it must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As already indicated above since the learned Judicial Magistrate, Hazaribagh has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor fixed any time or place for appearance of the petitioner, this Court has no hesitation in holding that the learned Judicial Magistrate, Hazaribagh has committed illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirements of law. Hence, the same is not sustainable in law and the continuation of the same will amount to abuse of process of law and this is a fit case where the orders dated 18.06.2012 and 20.08.2018 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012 be quashed and set aside. Accordingly, the orders dated 18.06.2012 and 20.08.2018 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012, is quashed and set aside.

So far as the orders dated 24.07.2012 and 15.07.2019 are concerned, it is a settled principle of law that the court issuing proclamation under Section 82 of Cr.P.C. may for reasons to be recorded in writing at any time after the issuance of proclamation, order for attachment of any property movable or immovable or both belonging to the proclaimed person. Now, in the absence of any material in the record to suggest that the proclamation under Section 82 of Cr.P.C. was in fact made in accordance with law, certainly the learned Judicial Magistrate, Hazaribagh committed illegality by passing the order of attachment of property of the petitioner without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing such order of attachment. Hence, under such circumstances, this Court has no hesitation in holding that the orders dated 24.07.2012 and 15.07.2019 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012 is also not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the orders dated 24.07.2012 and 15.07.2019 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012, be quashed and set aside.

Accordingly, the orders dated 24.07.2012 and 15.07.2019 passed by the learned Judicial Magistrate, Hazaribagh in connection with Keredari P.S. Case No. 18 of 2012, corresponding to G.R. No. 1088 of 2012, is quashed and set aside.

The learned Judicial Magistrate, Hazaribagh may pass a fresh order in accordance with law.

In the result, this Cr.M.P. stands allowed.

In view of the disposal of this criminal miscellaneous petition, the interim relief granted earlier vide order dated 04.03.2020 is vacated.

Registry is directed to intimate the court concerned forthwith.