Jharkhand HC removes absconding proclamation under CrPC 82

A reader has sent this judgment in reference to another Jharkhand HC judgment dealing with arrest and proclamation under section 82 of CrPC.

CrPC 82 can become a problem for those who want anticipatory bail or some kind of arrest protection, and pending that go underground or into hiding from police etc.  In that case, police may ask the court and court has power to declare that person as absconding from justice.  First para of Section 82 of CrPC is below:

CrPC Section. 82

 Proclamation for person absconding

Description

1. If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

Read more: http://devgan.in/criminal_procedure_code/index.php?q=82&a=2#ixzz4ImzAClOQ

Following judgment is for a case where lower courts had issued CrPC 82 proclamation without giving any reason, and high court has set aside those orders of sessions court and JMFC since no reason was specified in the orders.  It can be used by those who are have got unfavourable order against them under CrPC 82 but the judgment doesn’t have any reasons.  Also, it seems both the judges and assistant public prosecutor (APP) in this case were quite happy to use power of law, mechanically.   After all this, both government and judiciary complain about rising backlog of court cases, when they are both involved in increasing the workload in courts due to their own mistakes.

IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. M.P. 1573 of 2016
Nitesh Kumar Guddu … … … Petitioner

Versus

The State of Jharkhand … … … … … Opp. Party

CORAM: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY
…………
For the Petitioner : Mr. Rajesh Kumar
For the Opp. Party : Mrs. Lily Sahay, A.P.P.
2/21.07.2016 Heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mrs. Lily Sahay, learned A.P.P. for the State.

This application is directed against the order dated 02.06.
2016, passed by learned Sessions Judge, East Singhbhum, Jamshedpur
passed in Criminal Revision No. 46 of 2016, by which proclamation
issued under Section 82 Cr. P.C. vide order dated 05.02. 2016, passed
by Judicial Magistrate, 1st Class, Jamshedpur in connection with
Kadma P.S. Case No. 75 of 2015 has been affirmed.
Learned counsel for the petitioner submits that impugned
order dated 05.02. 2016 does not reflect subjective satisfaction of the
learned Magistrate, as he merely concentrated on the direction passed
in this case on 06.01. 2016, by which petitioner was directed to appear
before the court below by 20th January 2016. It has been submitted that
without considering the fact as to whether petitioner is evading his
arrest and therefore having no cogent reason assigned in the
impugned order dated 05.02. 2016 passed by the learned Magistrate
and the subsequent order passed by the learned Revisional Court the
same is liable to be quashed and set aside.

Learned A.P.P. has supported the impugned order.

It appears that earlier the issuance of proclamation under
Section 82 Cr. P.C. was under challenge in Cr. Revision No. 271 of 2015
in which an order was passed on 06.01. 2016 by the Sessions Judge,
East Singhbhum at Jamshedpur while setting aside the order and by
directing the petitioner to appear before the learned court below by
20.01. 2016. The order passed in Cr. Revision No. 271 of 2015 seems to
have weighed in the mind of the learned Magistrate, as in the
impugned order dated 05.02.2016 he has only considered the
observation so made, while issuing proclamation under Section 82 Cr.
P.C. The Revisional Court has also mentioned about the order passed
in Cr. Revision No. 271 of 2015 and not considered the fact that the
learned Magistrate has committed an error of law or not. The order
dated 05.02. 2016 does not contain any reason, and therefore the same
is hereby quashed and set aside. So far order dated 02.06. 2016 is
concerned, same has also not justified the issuance of proclamation
under Section 82 Cr. P.C. by the learned Magistrate. He has merely
concentrated only the earlier observation given by the learned
Revisional court dated 06.01. 2016.

Accordingly, both the orders, i.e. order dated 02.06. 2016,
passed by learned Sessions Judge, East Singhbhum, Jamshedpur
passed in Criminal Revision No. 46 of 2016, and order dated dated
05.02. 2016, passed by Judicial Magistrate, 1st Class, Jamshedpur in
connection with Kadma P.S. Case No. 75 of 2015 in absence of any
reason showing the subjective satisfaction with respect to the
requirement of issuance of proclamation under Section 82 Cr. P.C. is
hereby quashed and set aside.

This application stands allowed.
However, learned Magistrate is at liberty to proceed further
in accordance with law.

(Rongon Mukhopadhyay, J.)
Binit

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