Prince Khan 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 order dated 14.10.2020 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Bankmore P.S. Case No.55 of 2020 by which the proclamation under Section 82 of the Code of Criminal Procedure has been issued against the petitioner, who is the accused person of that case.

Learned counsel for the petitioner submits that the proclamation under Section 82 of the Code of Criminal Procedure was issued vide order dated 14.10.2020, by the learned Chief Judicial Magistrate, Dhanbad, 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 the Code of Criminal Procedure; without fixing any date, time and place for appearance of the petitioner, who is the accused person of the case. It is therefore submitted that the order dated 14.10.2020 is not sustainable in law, hence the same be quashed and set aside.

Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner for quashing the order dated 14.10.2020 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Bankmore P.S. Case No.55 of 2020 and submits that the petitioner is involved in the said Bankmore P.S. Case No.55 of 2020 involving the serious offences punishable inter alia under Sections 307 and 504 of the Indian Penal Code and Section 27 of the Arms Act. Learned Spl.P.P. further submits that the learned Chief Judicial Magistrate, Dhanbad has recorded its satisfaction that the accused person of this Criminal Miscellaneous Petition is hiding himself to evade his arrest. Hence, the learned Chief Judicial Magistrate, Dhanbad issued the proclamation under Section 82 of the Code of Criminal Procedure, in accordance with law. It is next submitted that there is absolutely no illegality in the order dated 14.10.2020. It is lastly submitted that this Criminal Miscellaneous Petition, 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 the Code of Criminal Procedure must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of the Code of Criminal Procedure 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 the Code of Criminal Procedure, it must mention the time and place for appearance of the petitioner who is the accused person of the case in the order itself by which the proclamation under Section 82 of the Code of Criminal Procedure is issued.

Perusal of the record reveals that the learned Chief Judicial Magistrate, Dhanbad has not mentioned any time and place for appearance of the petitioner who is the accused person of the case. Hence, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Dhanbad has committed illegality by issuing the said proclamation under Section 82 of the Code of Criminal Procedure without complying with the mandatory requirements of law. Hence, the same is not sustainable in law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 14.10.2020 passed by learned Chief Judicial Magistrate, Dhanbad in connection with Bankmore P.S. Case No.55 of 2020, be quashed and set aside qua the petitioner only.

Accordingly, the order dated 14.10.2020 passed by learned Chief Judicial Magistrate, Dhanbad in connection with Bankmore P.S. Case No.55 of 2020, is quashed and set aside qua the petitioner only.

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

In the result, this Criminal Miscellaneous Petition stands allowed.

In view of disposal of this Criminal Miscellaneous Petition, interim relief granted earlier vide order dated 18.12.2020 is vacated.

Registry is directed to intimate the court concerned forthwith.