Vimla Devi @ Kumari Vimla @ Gudiya Kumari 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 the Bhartiya Nagarik Suraksha Sanhita, 2023 with two prayers but at the outset, learned counsel for the petitioner submits that the petitioner does not press the prayer for quashing the order dated 24.06.2019 and only presses the prayer to quash the order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019 by which the learned Chief Judicial Magistrate, Hazaribagh has ordered for issuance of the proclamation under Section 82 of Cr.P.C. against the petitioner.

Accordingly, the prayer to quash and set aside the order dated 24.06.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019 is rejected as not pressed.

Learned counsel for the petitioner submits that the proclamation under Section 82 of Cr.P.C. has been issued against the petitioner by the said order dated 18.07.2019 without following the due process of law and without recording any 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. It is further submitted that the proclamation has been issued without fixing any time and place for appearance of the accused person, hence, the same is not in accordance with law. Therefore, it is submitted that the said order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019 be quashed and set aside.

Learned Spl.P.P. appearing for the State vehemently opposes the prayer of the petitioner to quash the said order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R.Case No.336 of 2019, by which the learned Chief Judicial Magistrate, Hazaribagh has issued the proclamation under Section 82 of Cr.P.C. and submits that the very fact that the learned Chief Judicial Magistrate, Hazaribagh has ordered for issuance of the proclamation under Section 82 of Cr.P.C. against the petitioner itself shows that there were materials available in the record for the learned Chief Judicial Magistrate to be satisfied that there is justification for issuance of such proclamation and proceeding. Therefore, 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 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 accused in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. After going through the said order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019, this Court finds that the learned Chief Judicial Magistrate, Hazaribagh 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, hence, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Hazaribagh 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. Therefore, this is a fit case where the order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019, is liable to be quashed and set aside.

Accordingly, the order dated 18.07.2019 passed by the learned Chief Judicial Magistrate, Hazaribagh in connection with Hazaribagh Sadar (Bara Bazar O.P.) P.S. Case No.75 of 2019 corresponding to G.R. No.336 of 2019, is quashed and set aside.

The learned Chief Judicial Magistrate, Hazaribagh may pass a fresh order in accordance with law.

In the result, this Cr.M.P. stands allowed to the aforesaid extent only.