Uday Nath Mahato 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 process under Section 82 of Cr.P.C. issued vide order dated 01.11.2023 passed by learned C.J.M., Dumka in connection with Dumka (T) P.S. Case No.44 of 2016 corresponding to G.R. No.248 of 2016 registered for the offences punishable under Sections 406, 419, 420, 120B, 467, 468 of the Indian Penal Code which is now pending before the learned C.J.M., Dumka.

The brief facts of the case is that on 01.11.2023, an application duly forwarded by the A.P.P. along with the execution report of non-bailable warrant of arrest issued by the court, was submitted by the Investigating Officer with a prayer for issue of the process under Section 82 of Cr.P.C. The learned (In-charge) C.J.M., Dumka considered from the materials in the record that the accused persons are absconding in fear of arrest and directed for issue of the process under Section 82 of Cr.P.C. without mentioning any time and place for appearance of the accused persons in respect of whom the said process under Section 82 of Cr.P.C. was issued.

Learned counsel for the petitioners submits that the proclamation under Section 82 of Cr.P.C. has been issued without complying with the due process of law which inter alia makes it mandatory for the court which issues the proclamation under Section 82 of Cr.P.C. to fix the time and place for appearance of the accused person in respect of whom process under Section 82 of Cr.P.C. is issued, in the order itself; by which such process is issued but as in the said order dated 01.11.2023, no time and place for appearance of the accused persons has been fixed, hence, the said order dated 01.11.2023 passed in the said case, is not sustainable in law. It is lastly submitted that the order dated 01.11.2023 passed by learned C.J.M., Dumka in connection with Dumka (T) P.S. Case No.44 of 2016 corresponding to G.R. No.248 of 2016 which is now pending before the learned C.J.M., Dumka, be quashed and set aside.

Learned Addl.P.P. appearing for the State on the other hand opposes the prayer for quashing and setting aside the order dated 01.11.2023 passed by learned C.J.M., Dumka in connection with Dumka (T) P.S. Case No.44 of 2016 corresponding to G.R. No.248 of 2016 which is now pending before the learned C.J.M., Dumka and submits that it is crystal clear from the order itself though not specifically mentioned that the accused persons were to appear before the court of C.J.M., Dumka on any working day. Hence, it is submitted that 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 decides to issue the proclamation under Section 82 of Cr.P.C., must mention the time and place for appearance of the accused persons in the order itself by which the proclamation under Section 82 of Cr.P.C. is ordered to be issued. As already indicated above; since the (In-charge) C.J.M., Dumka has not fixed any time or place for appearance of the petitioners in the said order dated 01.11.2023, this Court has no hesitation in holding that the (In-charge) C.J.M., Dumka has committed an illegality by issuing the proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirement of law, hence, the same is not sustainable in law and therefore, the continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 01.11.2023 passed by learned C.J.M., Dumka in connection with Dumka (T) P.S. Case No.44 of 2016 corresponding to G.R. No.248 of 2016 which is now pending before the learned C.J.M., Dumka, be quashed and set aside.

Accordingly, the order dated 01.11.2023 passed by learned C.J.M., Dumka in connection with Dumka (T) P.S. Case No.44 of 2016 corresponding to G.R. No.248 of 2016 which is now pending before the learned C.J.M., Dumka is quashed and set aside against the petitioners.

The learned C.J.M., Dumka may pass a fresh order in accordance with law.

This Cr.M.P. stands allowed accordingly.