Md. Salim @ Sopari, S/o-Md. Ayub Miya 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, 1973 with several prayers but the learned counsel for the petitioner submits that the petitioner confines his prayer to quash the order dated 21.02.2019 passed by the learned Judicial Magistrate-1st Class, Chatra in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013 by which the learned Judicial Magistrate-1st Class, Chatra has issued the proclamation under Section 82 of Cr.P.C. without recording its satisfaction that the petitioner is absconding or concealing himself to evade his arrest.

Learned counsel for  the petitioner submits that the proclamation under  Section  82  of  Cr.P.C.  has  been  issued  against  the  petitioner  vide order dated 21.02.2019 without following the due process of law and without recording the satisfaction of the learned Magistrate that the petitioner is absconding or concealing himself to evade his arrest which is  a sine  qua  non  for  issuing  the  proclamation  under  Section  82  Cr.P.C. and  further  the proclamation  has  been issued  without  fixing  any  time and  place  for appearance  of the  petitioner.  Hence,  it is  submitted that the order dated 21.02.2019 passed by the learned Judicial Magistrate-1st Class, Chatra in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013, be quashed and set aside.

Learned Addl. P.P. appearing  for the State vehemently  opposes the  prayer  of  the  petitioner  to  quash  the  order  dated  21.02.2019  passed by  the  learned  Judicial  Magistrate-1st Class,  Chatra  in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013 and submit that the  very fact that the learned  Judicial  Magistrate- 1st Class, Chatra has issued the proclamation under Section 82 of Cr.P.C., itself goes to show that there were sufficient materials available in  the  record  for  the  learned  Judicial  Magistrate-1st Class,  Chatra  to  be satisfied that there was justification for issuance of the proclamation under Section 82 of Cr.P.C. Hence, it is submitted that  there being  no illegality in the said order dated 21.02.2019 passed by the learned Judicial Magistrate-1st Class, Chatra in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013, 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 the proclamation under Section 82 of Cr.P.C., it must mention the time  and  place  for  appearance  of  the  accused  in  respect of  whom  such proclamation is issued. As already indicated above since the learned Judicial Magistrate-1st Class, Chatra 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 who is the accused person of the case concerned, hence, this Court has no hesitation in holding that the learned Judicial Magistrate-1st Class, Chatra has committed a grave 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. Therefore, this is a fit case where the order dated 21.02.2019 passed by  the  learned  Judicial  Magistrate-1st Class,  Chatra  in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013, be quashed and set aside qua the petitioner only.

Accordingly, the order dated 21.02.2019 passed by the learned Judicial Magistrate-1st Class, Chatra in connection with Simariya P.S. Case No.30 of 2013 corresponding to G.R. Case No.454 of 2013, is quashed and set aside qua the petitioner only.

The learned Judicial Magistrate-1st Class, Chatra may pass a fresh order in accordance with law.

In the result, this Cr.M.P. stands allowed to the aforesaid extent.