The Jharkhand High Court has emphasized that when issuing a proclamation under Section 82 of the Criminal Procedure Code (Cr.P.C.), the court must record its satisfaction regarding whether the accused is absconding or concealing themselves to evade arrest.

The Jharkhand High Court ruled that the orders issued by the Sub-Divisional Judicial Magistrate (SDJM), which included a non-bailable warrant, a proclamation under Section 82 of Cr.P.C., and an attachment order of the petitioner's property under Section 83 of Cr.P.C., were legally unsustainable.

A Bench of Justice Anil Kumar Choudhary held, “Chief 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 SDJM, Dhanbad has committed gross 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, therefore, the continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 23.02.2016 passed by learned SDJM, Dhanbad in connection with Katras P.S. case no. 263 of 2015 corresponding to G.R. No. 4574 of 2015 be quashed and set aside.”

The above ruling came in a criminal miscellaneous petition filed invoking the jurisdiction of the Court under Section 482 Cr.P.C., for quashing three orders passed by the SDJM, Dhanbad in connection with a case, whereby and whereunder, the SDJM Dhanbad had issued a Non-bailable Warrant of Arrest, the Proclamation under Section 82 of Cr.P.C and attachment order of the property of the accused petitioner under Section 83 of Cr.P.C respectively.

It was argued by the petitioner's counsel that there was no evidence to suggest that the petitioner was evading arrest, and one of the orders was passed without following the due process of law and without recording the satisfaction that the petitioner was absconding or concealing himself to evade her arrest which is a sine qua non for issuing proclamation under Section 82 of Cr.P.C.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the Court found it pertinent to mention that the warrant of arrest may be directed to any person, by the Chief Judicial Magistrate or a Magistrate of First Class, inter alia, who was an accused of non-bailable offence and who was evading his arrest but after going through the first order (dated 04.01.2016) passed by the SDJM, Dhanbad, the court observed, “there is absolutely no material in the record, to suggest that there is any allegation against the petitioner that the petitioner was evading his arrest nor learned Magistrate has recorded his satisfaction in this behalf, hence, this court is of the considered opinion that the order dated 04.01.2016 passed by learned SDJM, Dhanbad in connection with Katras P.S. case no. 263 of 2015 corresponding to G.R. No. 4574 of 2015, is not sustainable in law and same be quashed and set aside.”

With respect to the second order,the Court said, “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.”

Similarly, with respect to the third order, for property attachment, the Court stated, “the order of attachment of property of the petitioner without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing of such order of attachment is not sustainable in law. Hence, under such circumstances, this Court has no hesitation in holding that the order dated 31.03.2016 passed by the learned SDJM, Dhanbad in connection with Katras P.S. case no. 263 of 2015 corresponding to G.R. No. 4574 of 2015 is also not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 31.03.2016 passed by the passed by learned SDJM, Dhanbad in connection with Katras P.S. case no. 263 of 2015 corresponding to G.R. No. 4574 of 201, be quashed and set aside.”

Accordingly, all three orders were quashed and set aside by the Court. The Court directed the SDJM to pass fresh orders in accordance with the law. In the result, the criminal miscellaneous petition was allowed.

Appearance:

For the Appellant : Ms. Vani Kumari, Advocate

For the State : Mr. Pankaj Kumar Mishra, A.P.P.

Case No.: Criminal Appeal (S.J.) No. 246 of 2012

Case Title: Julekha Khatoon v. The State Of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 46

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