Jogendra Gope @ Jogender Gope And Ors vs State Of Jharkhand

Heard learned counsel for the parties through V.C.

The instant application has been preferred by the petitioner for quashing the order dated 24.02.2020 (issuing process under Section 82 Cr. P.C) passed by the learned Judicial Magistrate 1st Class at Ranchi passed in connection with Bariatu P.S. Case No. 11 of 2020 registered on 10.01.2020, under Section 341, 323, 379, 504 and 34 of the I.P.C. and the same is pending before the Judicial Magistrate 1st Class, Ranchi.

Learned counsel for the petitioner submits that the FIR has been lodged by the informant on 10.01.2020, thereafter the I.O. of this case issued notice under Section 41A of Cr. P.C. to these petitioners on 20.01.2020 which has been duly replied by these petitioners through written defense statement on 22.01.2020 and prior to the issuance of process under section 82 of Cr.P.C, the petitioners have moved before the learned court of Judicial Commissioner at Ranchi for grant of their anticipatory bail, however the same was rejected vide order dated 10.02.2020 by the learned AJC-VIII at Ranchi. Thereafter, these petitioners have moved before this Court for grant of their anticipatory bail in A.B.A. (filing No.5111 of 2020) on 22.02.2020. In this intervening period, the police has never raided the house of the petitioner, and directly taken process under Section 82 of Cr. P.C. by misguiding the learned court of Magistrate on 24.02.2020, hence, in these facts and circumstances it is crystal clear that these petitioners are not absconding with law or law courts as they are under asylum of this Court seeking anticipatory bail as such, the impugned order is fit to be set aside.

Learned counsel for the petitioner further relied upon the judgment passed by this Court in batch matter, wherein there is a reference of judgment passed by the Hon'ble Apex Court in the case of Inder Mohan Goswami & another vs. State of Uttaranchal & Ors reported in (2007) 12 SCC 1, wherein at paragraph 56, the learned Apex Court has held that the power being discretionary must be exercised judiciously with extreme care and caution. Para 56 of the judgment is quoted herein below:-

"56.The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided."

Learned counsel for the opposite party no.2 submits that when the ABA was dismissed by the District Court; after ten days the I.O. has presented the application for issuance of process under section 82 of the Cr. P.C. and the same was allowed. In view of the aforesaid facts there is no error, whatsoever, in issuance of process under section 82 of Cr.P.C. and the impugned order dated 24.02.2020 issuing proclamation under Section 82 of the Cr.P.C. is correct.

Having heard learned counsel for the parties and after going through the materials available on record, admittedly the FIR was lodged by the informant on 10.01.2020 and I.O. of this case issued notice under Section 41 A of Cr.P.C. to these petitioners on 20.01.2020. The said Notice was duly replied by these petitioners immediately on 22.01.2020. It also appears that prior to the issuance of process under Section 82 of the Cr. P.C., the petitioners have moved before the learned trial court for grant of their anticipatory bail and the same was rejected on 10.02.2020 and, thereafter these petitioners have moved before this Court for grant of their anticipatory bail on 22.02.2020 having filing No. 5111 of 2020 and the matter was pending before this Court. From impugned order it appears that the I.O. has presented the application for issuance of proclamation under Section 82 of the Cr.P.C. and the same was taken up on 24.02.2020 and was allowed. In this background, I am having no hesitation in agreeing with the contention of the petitioner that the impugned order has been passed in haste only by looking to the contents of the application that I.O went to the house of the petitioners thrice on 11.02.2020, but they were not found. There is nothing on record to show that the police again went after that date. As per the settled principle of law as held in the case of Inder Mohan Goswami (supra) the power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. It is true that there cannot be any arithmetical formula for issuing process but in the present facts and circumstances of the case it appears that action of prosecution was in haste. From the impugned order itself it transpires that only after one day i.e. on 11.02.2020 the investigating officer made three attempts but from 11.02.2020 there is nothing on record to suggest that the petitioner has evade in cooperating with the investigation. In this view of the matter relying upon the ratio of the judgment passed in the case of Inder Mohan Goswami (supra), I hold that the impugned order is bad in law and the order dated 24.02.2020 (issuing process under Section 82 Cr. P.C) passed by the learned Judicial Magistrate 1st Class at Ranchi passed in connection with Bariatu P.S. Case No. 11 of 2020 is set aside.

Accordingly, this criminal miscellaneous application is allowed and disposed of.