In 498A/406 case, Jharkhand HC rejects lower court’s NBW, and CrPC 82 proclamation for absconding persons

Thanks to a reader, we have this interesting judgment on topic of arrest and bail; and it highlights the rot that has become India, and the rot and zombie-hood exists in all branches of official life: be it executive (police department), or judiciary.  So the usual Indian trick of pointing finger at another department will not work in this case.  Citizens are not above blame either, because they seem to firmly believe that the rot exists in government, and it can’t be fixed; so all their energy is spent on finding shortcuts and escape techniques, rather than improving the system.

Gist of the the judgment is this:

1. Police complaint filed against husband and family members in IPC 498A, 406, 420, Dowry Prohibition (Sections 3 and 4) case.
2. My guess is either summons are issued by police to husband and family, or they come to know that FIR has been completed.
3. The family thinks that if they appear before police in response to summons/for investigation etc, they will be produced before magistrate and magistrate will send him sent to judicial custody in a routine manner without considering whether it is really necessary.  Point to note is that the Indian citizens also have full ‘faith’ that magistrate will act in a corrupt way, so maybe they are placing hopes on no corruption in higher judiciary.
4. Family members go underground probably fearing impending arrest.
5. Police IO (investigation officer) requisitions court to issue NBW (Non-bailable warrant) is issued against petitioners saying that they are evading arrest.   Court grants the NBW.
6. Meanwhile without giving report about execution of NBW, our super efficient police (only in arresting, nothing much else) applies to court to issue order to proclaim accused as absconding under CrPC 82.
7. Our super efficient magistrate (in granting NBW mechanically etc) agrees with police’s requisition and declares accused as absconding.
8. Petitioners apply to HC to set aside both the NBW and CrPC 82 order.
9. Jharkhand HC acknowledges that NBW was granted by lower court judges in routine manner without application of mind.  HC also holds that the requisition of CrPC 82 by police was wrong, and so was the magistrate’s order on that.  However, the HC did not deem it serious enough to start departmental proceeding against magistrate for being in contempt of Arnesh Kumar vs State of Bihar & Anr. judgment.  So this kind of police chase and magistrate orders for detention may continue in Jharkhand for lot more time to come.

Full judgment text below:

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P. No. 1583 of 2014
With
I.A No.3583 of 2014
1. Manoj Kumar Jain
2. Vinita Jain
3. Sumit Jain
4. Vijay Kumar Jain                                      …… Petitioners
Versus
1.The State of Jharkhand
2. Poonam Jain                                             …… Opposite Parties
——–
CORAM      :      HON’BLE MR. JUSTICE H. C. MISHRA
——
For the Petitioners          :      Mr. Raj Mangal Singh, Advocate
Mr. Sidhartha Roy, Advocate.
For the State                :      Mr. M.B. Lal, A.P.P.
For the Opp.Party No.2 :            Mr. Pandey Neeraj Rai, Advocate
——

3/7.8.2014          Complainant informant Opposite Party No.2 has appeared

through Advocate.

2.            Heard the learned counsel for the petitioners and the learned

counsel for the State as also learned counsel for the opposite party No.2.

3.            The petitioners have filed this application for quashing the F.I.R
and the entire criminal proceeding against them in connection with Ramgarh

P.S Case No.167 of 2014, corresponding to G.R No.1815 of 2014 instituted

for the offence under Sections 498-A, 406, 420 of the Indian Penal Code and

Sections 3 / 4 of the Dowry Prohibition Act.

4.            I.A No.3583 of 2014  has been filed by the petitioners,

challenging the orders dated 10.6.2014  and  2.7.2014 / 3.7.2014 passed by
the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in the said

G.R No. 1815 of 2014, whereby, warrants of arrest have been ordered to be

issued against the petitioners and by the subsequent order, the process

under Section 82 of the Cr.P.C., has been ordered to be issued against

them. The prayer has been made in the interlocutory application for
amending the prayer portion of the main application and adding the prayer

for quashing these orders as well. The prayer is allowed.

5.            In course of arguments, learned counsel for the petitioners has

given up his prayer for quashing the criminal proceeding in the said

Ramgarh PS Case No. 167 of 2014, as there are allegations against the
petitioners in the FIR. Accordingly, this prayer of the petitioners is rejected as

not pressed.

6.            Learned counsel for the petitioners confined his arguments to

the challenge of the order dated 10.6.2014 as also the order dated

2.7.2014 / 3.7.2014, issuing the warrants and the process under Section  82
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of the Cr.P.C., against the petitioners. It is submitted by the learned counsel

for the petitioners that the order dated 10.6.2014 has been passed without

any application of mind by the Magistrate, only on the requisition of the I.O.,
and accordingly, the said order cannot be sustained in the eyes of law. It is

submitted that the subsequent order being the consequential order, the

same also cannot be sustained in the eyes of law.

7.            Counter affidavit and an affidavit have been filed on behalf of the

informant in this case, refuting the stand of the petitioners. By way of an
affidavit filed on 7.8.2014, the informant has brought on record the

requisitions filed by the Police Officer on 10.6.2014 and on 2.7.2014, for

issuance of warrants and the process against the petitioners, and in both

these requisitions it is only stated that the accused persons were evading the

arrest and were also removing their assets.

8.            In support of his contention that the impugned orders passed by
the Court below cannot be sustained in the eyes of law, learned counsel for

the petitioners has placed reliance upon the decision of the Hon’ble

Supreme Court of India in      Raghuvansh Dewanchand Bhasin Vs. State of

Maharashtra & Anr.,       reported in   2011 (4) JLJR 385 (SC),       wherein the law

has been laid down as follows :-

“ 9. It needs little emphasis that since the execution of a
non-bailable warrant directly involves curtailment of liberty of
a person, warrant of arrest cannot be issued mechanically,
but only after recording satisfaction that in the facts and
circumstances of the case, it is warranted. The Courts have
to be extra-cautious and careful while directing issue of non-
bailable warrant, else a wrongful detention would amount to
denial of constitutional mandate envisaged in Article 21 of

the Constitution of India. At the same time, there is no
gainsaying that the welfare of an individual must yield to that
of the community. Therefore, in order to maintain rule of law
and to keep the society in functional harmony, it is
necessary to strike a balance between an individual’s  rights,

liberties and privileges on the one hand, and the state on the
other. Indeed, it is a complex exercise. As justice Cardozo
puts it “on the one side is the social need that crime shall be
repressed. On the other, the social need that law shall not
be flouted by the insolence of office. There are dangers in
any choice.” Be that as it may, it is for the court, which is
clothed with the discretion to  determine whether the

presence of an accused can be secured by a bailable or non
bailable warrant, to strike the balance between the need of
law enforcement on the one hand and the protection of the
citizen from highhandedness at the hands of the law
enforcement agencies on the other. —————– .”
(Emphasis supplied).
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9.          Learned counsel has also placed reliance upon the decision of

the Hon’ble Supreme Court of India in         Arnesh Kumar Vs. State of Bihar

& Anr.,   reported in   2014 (3) JBCJ 352 (SC),       wherein the Apex Court has
laid down certain guidelines to be followed before arresting the accused,

which are as follows :-

“12.  Our endeavour in this judgment is to ensure that police
officers do not arrest accused unnecessarily and Magistrate do
not authorize detention casually and mechanically. In order to
ensure what we have observed above, we give the following

direction:-
(1) All the State Governments to instruct its police officers
not to automatically arrest when a case under Section 498-A of
the IPC is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above

flowing from Section 41, Cr.P.C.
(2) All police officers be provided with a check list
containing specified sub-clauses under Section 41 (1) (b) (ii);
(3) The police officer shall forward the check list duly filed
and furnish the reasons and materials which necessitated the
arrest, while forwarding/ producing the accused before the
Magistrate for further detention;

(4) The Magistrate while authorizing detention of the
accused shall peruse the report furnished by the police officer in
terms aforesaid and only after recording its satisfaction, the
Magistrate will authorize detention;
(5) The decision not to arrest an accused, be forwarded to
the Magistrate within two weeks from the date of the institution

of the case with a copy to the Magistrate which may be
extended by the Superintendent of Police of the district for the
reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of
Cr.P.C be served on the accused within two weeks from the
date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be

recorded in writing;
(7) Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for
contempt of court to be instituted before High Court having
territorial Jurisdiction.

(8) Authorising detentions without recording reasons as
aforesaid by the judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.”
(Emphasis supplied).
10.         Placing reliance on these decisions learned counsel submitted

that the impugned orders, issuing warrant of arrest and the process against

the petitioners are absolutely illegal and the same cannot be sustained in

the eyes of law.
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11.         Learned counsel for the State as also learned counsel for the

opposite party No.2 have opposed the prayer and have submitted that

there is no illegality in the impugned orders passed by the Court below. It is
submitted by the learned counsel for the opposite party No.2 that after

lodging the FIR, the petitioners were evading the arrest and accordingly,

the requisition was given by the police Officer on 10.6.2014, stating therein

that the accused persons were evading the arrest and also removing their

property and accordingly, on the basis of which, the impugned order was
passed for issuance of warrants against the petitioners.

12.         Learned counsel also submitted that since the accused persons

were also removing their assets, in view of another requisition submitted by

the Police Officer, the process under Section 82 has also been directed to

be issued against the petitioners. It is accordingly, submitted that there is

no illegality in the impugned orders and no interference by this Court is
warranted in the said orders in exercise of power under Section 482 of the

Cr.P.C.

13.         After having heard the learned counsels for both sides and upon

going through the record, I find that upon the requisition given by the Police

Officer, the warrants were directed to be issued against the petitioners by

the Court below on 10.6.2014, directing for execution of the warrant within
thirty days. This order is the first order after recording the institution of the

case. Before expiry of the period of thirty days as aforesaid, i.e., on

2.7.2014 the requisition was again given by the Police Officer, for issuance

of the process under Section 82 of the Cr.P.C., again stating the same

facts as in the previous requisition, and without mentioning anything about
the execution of the warrants against the petitioners, whereupon the

process under Section 82 was also directed to be issued against the

petitioners.

14.         In my considered view, the order dated 2.7.2014 / 3.7.2014

cannot be sustained in the eyes of law, as the process under Section 82 of
the Cr.P.C., has been ordered to be issued before the expiry of the period

of thirty days as granted by the Court below, for execution of the warrants,

and that too, without getting the execution reports. Indeed this order also

has been passed in an absolutely mechanical manner, without recording

any satisfaction by the Magistrate. This brings us to the consideration of the
order dated 10.6.2014 issued by the Court below, issuing the warrants

against the petitioners. This order only shows that the same was issued on

the basis of the requisition made by the Police Officer, but there is nothing

in the order to show that the Magistrate had applied his independent mind,
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while ordering for issuance of warrant.  No reason has been assigned in

the order for issuance of warrant, nor any satisfaction of the Magistrate is

recorded that issuance of the warrant was warranted in the facts of the
case. Even though learned counsel for the opposite party No.2 has pointed

out that in the requisition for issuance of warrant, it is mentioned that the

accused petitioners are evading the arrest, but it is apparent from the order

dated 10.6.2014 that even this reason has not been assigned in the said

order, which clearly shows that the order has been issued without applying
the  judicial mind by the Court below.

15.         In view of the aforesaid discussions, I find that the decision cited

by the learned counsel for the petitioners in         Raghuvansh Dewanchand

Bhasin’s    case ( supra  ) is fully applicable to the facts of this case and the

impugned orders cannot be sustained in the eyes of law.

16.         Apart from the above, the directions given by the Apex Court in
Arnesh Kumar’s       case ( supra ), also needs to be kept in mind by the Police

Officer while giving the requisition for issuing the warrant against the

petitioners or while exercising his power of arrest under the Code of

Criminal Procedure in the cases of the cognizable offences, which shall be

exercised in accordance with law.

17.         In view of the aforementioned discussions, the impugned orders
dated 10.6.2014 and 2.7.2014 / 3.7.2014 passed by the learned

Sub-Divisional Judicial Magistrate, Hazaribagh, in G.R Case No.1815 of

2014, are hereby, set aside. This application, along with the interlocutory

application, are accordingly, allowed in part.

( H. C. Mishra, J.)

B.S/

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