Upendra Soni vs State Of Jharkhand

Sanjay Kumar Dwivedi, J

This petition has been filed for quashing the orders dated 16.09.2019, 16.12.2019 and 04.02.2020, whereby, non-bailable warrant of arrest and processes under Sections 82 and 83 Cr.P.C. respectively have been directed to be issued against the petitioner. By way of I.A. No.8396 of 2022, the order dated 15.06.2022 whereby permanent warrant of arrest in connection with Kolebira P.S. Case No.02/2019, G.R. Case No.93/2019(S), now pending in the court of the learned Chief Judicial Magistrate, Simdega against the petitioner has been challenged. The said I.A. has been allowed vide order dated 20.09.2022.

Learned counsel for the petitioner submits that during the pendency of this petition, permanent warrant of arrest has been issued against the petitioner and the prayer for amendment has been allowed by this Court vide order dated 20.09.2022 and the said order was allowed to be challenged. He further submits that vide order dated 08.01.2021, this Court has called upon the State to bring on record the document with regard to notice issued under Section 41-A Cr.P.C. He also submits that the said notice has not been brought on record by the State. He further submits that the petitioner was not named in the FIR. The petitioner has not received any notice under Section 41-A Cr.P.C. and only on the application of the I.O., the learned court has issued non-bailable warrant of arrest and processes under Sections 82 and 83 Cr.P.C. have been directed to be issued against the petitioner.

Learned counsel for the State submits that counter affidavit has been filed. He tried to justify the impugned orders. He fairly submits that notice under Section 41-A Cr.P.C. has not been brought on record by way of filing affidavit.

In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record. It appears that vide order dated 08.01.2021, the State was directed to bring on record the notice under Section 41-A Cr.P.C. The State has not filed any further affidavit and the document in support of issuance of notice issued under Section 41-A Cr.P.C. has not been brought on record, which suggest that notice under Section 41-A Cr.P.C. was not issued against the petitioner and only on the application of the I.O., the learned court has directed to issue non-bailable warrant of arrest and processes under Sections 82 and 83 Cr.P.C. against the petitioner. Section 41-A Cr.P.C. is not a format, it is a statutory provision and the police is required to follow the provision in view of the judgment passed by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar & another; [(2014) 8 SCC 273].

In view of the above facts and considering that in absence of notice under Section 41-A Cr.P.C. and only on the application of the I.O., the learned court has passed the impugned orders, the orders dated 16.09.2019, 16.12.2019 and 04.02.2020 and 15.06.2022 passed in connection with Kolebira P.S. Case No.02/2019, G.R. Case No.93/2019(S), now pending in the court of the learned Chief Judicial Magistrate, Simdega are, hereby, quashed. The matter is remitted back to the learned court to proceed afresh, in accordance with law.

Accordingly, this petition stands allowed and disposed of.

Interim order dated 20.09.2022 stands vacated.