Raju Modak 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 528 of B.N.S.S., 2023 with several prayers but the learned counsel for the petitioner submits that the petitioner does not press the prayer to quash the orders dated 29.08.2017, 09.01.2018 and 18.04.2018 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017.

Hence, the prayer to quash the orders dated 29.08.2017, 09.01.2018 and 18.04.2018 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 are rejected as not pressed.

So far as the orders dated 18.09.2017 and 10.12.2024 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 is concerned, it is submitted by the learned counsel for the petitioner that the learned Judicial Magistrate 1st Class, Dhanbad has issued the proclamation under Section 82 of Cr.P.C. without following the due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor fixed any time or place for the appearance of the petitioner- who is the accused person of the said case. Hence, it is submitted that orders dated 18.09.2017 and 10.12.2024 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 be quashed and set aside.

Learned Special Public Prosecutor on the other hand opposes the prayer and submits that the very fact that the learned Magistrate has issued the written proclamation under Section 82 of Cr.P.C. itself shows that there were materials available in the record for issuance of such proclamation and the petitioner was to appear before the court concerned after one month from the date when the written proclamation is made. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials 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 1st Class, Dhanbad has neither recorded its satisfaction that the petitioner is absconding or keeping out of the way to evade his arrest nor fixed any time or place for appearance of the petitioner- who is the accused person of this case, which is sine-qua-non for issuance of the proclamation under Section 82 of Cr.P.C., therefore, this Court is of the considered view that if the orders dated 18.09.2017 and 10.12.2024 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 is allowed to continue, the same will amount to abuse of process of law. Hence, this is a fit case where the orders dated 18.09.2017 and 10.12.2024 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 be quashed and set aside qua the petitioner.

Accordingly, the orders dated 18.09.2017 and 10.12.2024 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with Kenduadih P.S. Case No. 56 of 2017, corresponding to G.R. No.1658 of 2017 is quashed and set aside qua the petitioner.

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

In the result, this criminal miscellaneous petition is allowed.