Shakil Ansari 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 Bhartiya Nagrik Suraksha Sanhita, 2023 with a prayer to quash the order dated 02.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Latehar in connection with Mahuadanr P.S. Case No.101 of 2022 by which the learned Sub-Divisional Judicial Magistrate, Latehar has passed an order for issuance of proclamation under Section 82 of the Code of Criminal Procedure against the petitioner without fixing the time and place for appearance 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 02.01.2024 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 appearance of the petitioner, who is the accused person of the said case. Hence, it is submitted that the order dated 02.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Latehar in connection with Mahuadanr P.S. Case No.101 of 2022, be quashed and set aside.

Learned Spl.P.P. appearing for the State vehemently opposes the prayer for quashing the order dated 02.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Latehar in connection with Mahuadanr P.S. Case No.101 of 2022 and submits that the very fact that the learned Sub-Divisional Judicial Magistrate, Latehar has issued the proclamation under Section 82 of Cr.P.C. itself shows that the petitioner was to appear before the Court concerned within 30 days during the court hours. Hence, it is 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 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 Sub-Divisional Judicial Magistrate, Latehar 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 Sub-Divisional Judicial Magistrate, Latehar 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 order dated 02.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Latehar in connection with Mahuadanr P.S. Case No.101 of 2022, be quashed and set aside.

Accordingly, the order dated 02.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Latehar in connection with Mahuadanr P.S. Case No.101 of 2022, is quashed and set aside.

The learned Sub-Divisional Judicial Magistrate, Latehar may pass a fresh order in accordance with law.

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