CIVIL APPEAL 181 of 1991 on 22 February 1993

1. The State of Jharkhand

2. Jodho Mahto, son of Late Horil Mahto, resident of village – Lahiya, P.O. + P.S. - Nawadih, District – Bokaro, Jharkhand … ...Opposite Parties

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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY

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For the Petitioner: Md. Zaid Ahmad, Advocate For the State: Mr. Satish Kumar Keshri, A.P.P.

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06/15.12.2016Heard Md. Zaid Ahmad, learned counsel appearing for the petitioner and Mr. Satish Kumar Keshri, learned A.P.P. for the State.

In this application the petitioner has prayed for quashing of the entire criminal proceeding in connection with Complaint Case No. 181 of 1991 including the order dated 22.02.1993 passed by the learned Judicial Magistrate, Bermo at Tenughat by which cognizance has been taken for the offences punishable under Sections 366, 302, 307, 148, 149 of the Indian Penal Code. A further challenge has been made to the order dated 25.05.2006, 14.09.2007, 29.01.2009 and 20.01.2011 by virtue of which non-bailable warrant of arrest, proclamation under Section 82 Cr.P.C., proclamation under Section 82 Cr.P.C., process under Section 83 Cr.P.C. and declaration of the petitioner as an absconder respectively have been directed.

It has been submitted by the learned counsel for the petitioner that the petitioner is a police personnel and he has falsely been implicated in the present case. It has also been submitted that the petitioner was merely doing his duty for which he has been made an accused.

With respect to the challenges which have been made to the orders dated 25.05.2006, 14.09.2007, 29.01.2009 and 20.01.2011 are concerned submission has been advanced that none of the orders reflect subjective satisfaction on the part of the learned Magistrate as without application of judicial mind the said orders have been passed.

It has, therefore, been prayed that the order taking cognizance as well as the subsequent orders for securing the attendance of the petitioner are not in accordance with law and, therefore, the same be quashed.

Learned A.P.P. has opposed the prayer made by the petitioner.

It appears from the complaint petition that the specific allegations have been levelled against the petitioner who along with the other co-accused persons are said to have been apprehended Radha Devi and had taken her away forcibly. The order taking cognizance dated 22.02.1993 has discussed in details the complaint case as well as the materials culled out from the enquiry held under Section 202 Cr.P.C. and in view of the complicity of the petitioner which is apparent no interference is necessitated in the order dated 22.02.1993 and thus the prayer of the petitioner with respect to quashing of the entire criminal proceedings is, hereby, rejected.

As regards the other orders which are under challenge, it appears that proclamation under Section 82 Cr.P.C. was directed to be issued on 14.09.2007 as Execution Report with respect to the non-bailable warrant of arrest was never received by the learned court below. It further appears that on 29.01.2009 process under Section 83 Cr.P.C. was issued and subsequently vide order dated 20.01.2011 the petitioner was declared as an absconder and permanent warrant of arrest was ordered to be issued against him.

The orders dated 14.09.2007 and 29.01.2009 do not reflect any reasons which have been assigned by the learned Magistrate before directing issuance of proclamation and process under Section 82 and 83 Cr.P.C. respectively for securing the attendance of the petitioner. The subsequent order dated 20.01.2011 is based on non-appearance of the petitioner who is said to be a police personnel and who was not aware and the institution of the case and just before his salary was stopped on 06.04.2016 the petitioner could come to know about the said case and, thereafter, he had preferred the instant application.

Since the order dated 14.09.2007 and 29.01.2009 are devoid of any cogent reasons they are hereby quashed as set aside.

Umesh/-

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Consequent to the quashing of the orders dated 14.09.2007 and 29.01.2009, the impugned order dated 20.01.2011 is also hereby quashed and set aside.

This application is allowed to the extent mentioned hereinabove.

(Rongon Mukhopadhyay, J.)