Surya Narayan Hansda @ Surya Hansda vs State of Jharkhand

Heard learned counsel for the petitioner and the learned counsel appearing for the State through Video Conferencing. The lawyers have no

objection with regard to the proceeding which has been held through video conferencing today at 11.00 a.m.. They have no complaint with respect to

the audio and video clarity and quality.

In this criminal miscellaneous petition, the petitioner has challenged the order dated 07.12.2020, passed in Misc. Cr. Application No.543 of 2020 by

the Additional Sessions Judge II, Godda whereby the application of the petitioner was dismissed.

Counsel for the petitioner submits that by filing an application before the Court below, the petitioner had challenged the order dated 28.09.2020, by

which processes under Section 82 of the Code of Criminal Procedure was issued. He submits that issuing processes under Section 82 of the Code of

Criminal Procedure is absolutely bad and against the provisions of law. He preferred the Misc. Cr. Appl. No.543 of 2020 before the Sessions Judge

challenging the said order. The Additional Sessions Judge II, Godda on 07.12.2020 dismissed the said Misc. Cr. Appl. No.543 of 2020 mechanically.

He further submits that the order is unreasoned and non speaking. He further submits that the Sessions Court even did not follow the law laid down by

this Court in the case of Md. Rustum Alam @ Rustam & Others versus State of Jharkhand as reported in 2020 (2) JLJR 712 and in utter disregard of

the order passed by this Court, has passed the impugned order.

I have heard counsel for the petitioner and the State and have gone through the records and the ordersheets.

An application was filed by the investigating officer praying therein to issue processes under Section 82 of the Code of Criminal Procedure against

the petitioner. Said application was allowed on 28.09.2020. The Judicial Magistrate recorded the fact submitted by the prosecution that the police

raided the house of the petitioner on 3 occasions, i.e., 16.09.2020, 20.09.2020 and 23.09.2020 and reached at a conclusion that the petitioner is evading

his arrest and has absconded and accordingly, returned the warrant. The Magistrate, after recording the said fact, had directed the office to issue

process of Section 82 Cr.P.C. Whether and how the Court was satisfied or not on the aforesaid plea of the investigating officer has not been

mentioned. The satisfaction even was not recorded in the order. The Judicial Magistrate recorded the submission of the investigating officer and

thereafter directed the office to issue processes. Further, neither any date or time in terms of Section 82 of the Code of Criminal Procedure has been

mentioned in the impugned order. A Misc. Cri. Appl. No.543 of 2020 was filed by the petitioner before the Court of Sessions Judge, which was heard

by the Additional Sessions Judge II, Godda. The Additional Sessions Judge II, Godda, vide order dated 07.12.2020 dismissed the said application.

I have gone through the aforesaid order passed by the Additional Sessions Judge II, Godda. After recording some facts, the operative portion of the

order and the findings read as follows: -

The petitioner has prayed to set aside this proclamation u/s 82 of Cr.P.C. on technical grounds that it does not contain the date, time and place for the

appearance of the petitioner.

In my opinion, such type of petition as Misc. Cr. Appl. is not maintainable, hence it is hereby dismissed accordingly.

Form IV of Schedule II of the Code of Criminal Procedure issued pursuant to the order dated 28.09.2020 has also been brought before me. When I

go through the Form IV, I find that the place, date and time when the petitioner has to appear has been kept blank. This is a major illegality committed

by the Court of the Judicial Magistrate. Putting a date for appearance in Form IV and in the ordersheet is a mandatory provision and the Court cannot

brush aside the same terming it to be technical one. The Additional Sessions Judge considered the same to be a technical ground. Even if the same is

technical ground, it is enough to quash the processes under Section 82 of the Code of Criminal Procedure. The statute provides for giving date and

time in Form IV, which is a statutory document. Section 82 read with Form IV is the procedure and it is settled law that when a procedure is

prescribed in the law, the same has to be followed. When a law provides that a particular act has to be done in a particular manner, then the same has

to be done in the same particular manner and the said procedure cannot be given a go bye. This basic principle has been deviated while passing the

impugned order by the Magistrate and surprisingly, the Additional Sessions Judge also misdirected himself while passing the impugned order. Further,

the Additional Sessions Judge has opined that such type of petition as Misc. Cri. Appl. is not maintainable. The reasons for holding the same as not

maintainable has not been mentioned in the impugned order. May be an application is not maintainable, but, when the Court holds that the same is not

maintainable, the reasons for holding such, must be mentioned in the order. The order passed by the Additional Sessions Judge II, Godda is absolutely

unreasoned, non-speaking and unsustainable in the eyes of law.

This Court, in the case of Md. Rustum Alam @ Rustam & Others versus State of Jharkhand as reported in 2020 (2) JLJR 712, has already dealt in

detail about this issue. The said order was circulated to all the Judicial Officers of the State much prior to passing of both the impugned orders, i.e., the

orders passed by the Judicial Magistrate and the Additional Sessions Judge. Both the Courts have passed their respective orders ignoring the orders of

this Court. This is most unfortunate and is improper. A judgment of the higher Court is always binding upon the Subordinate Court, which must be

followed. Both the Judicial Magistrate and the Additional Session Judge should be cautious in future.

Further, in view of what has been held above and in view of the order passed in the case of Md. Rustum Alam @ Rustam & Others versus State

of Jharkhand as reported in 2020 (2) JLJR 712, by exercising jurisdiction under Section 482 of the Code of Criminal Procedure, I am inclined to set

aside the order dated 28.09.2020 passed by the Judicial Magistrate 1st Class, Godda in Thakurgangti Police Station Case No.09 of 2020 (G.R. No.352

of 2020) by which processes under Section 82 of the Code of Criminal Procedure has been issued. The order dated 07.12.2020 passed by the

Additional Sessions Judge II, Godda in Misc. Cri. Appl. No.543 of 2020 is also hereby set aside. The matter is remanded to the Judicial Magistrate

First Class, Godda to pass a fresh order in accordance with law and in terms of the order passed by this Court in Md. Rustum Alam @ Rustam &

Others versus State of Jharkhand as reported in 2020 (2) JLJR 712.

This criminal miscellaneous petition is, accordingly, allowed.

Let a copy of this order be communicated to the Judicial Magistrate 1st Class, Godda and the Additional Sessions Judge II, Godda through the

Registrar General and the Principal District & Sessions Judge, Godda immediately through FAX.

Registrar General is also directed to place a copy of this order on the administrative side before the Hon'ble Zonal Judge of Godda Judgeship.