RAJENDRA D. SETH Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner questions the legality and validity of the order dated 11.4.2013 passed by learned Judicial Magistrate, Ranchi in Namkum P.S. Case No. 173 of 2011 whereby proclamation under Sec. 82 of the Code of Criminal Procedure (in short 'the Code') has been issued against the petitioner without complying the mandate of the said provision. To put in short the relevant facts, necessary for the purpose of adjudication of the point involved is that the petitioner was made accused in Namkum P.S. Case No. 173 of 2011 under Sec. 387 of the Indian Penal Code on the allegation that one Rekha Jha, who happens to be the daughter of the informant -Lakshmi Kant Jha was married to this petitioner in Purulia Court on 18th August, 2010 before the marriage registrar but after two days of the marriage, the petitioner started misbehaving with the said Rekha Jha and pressurizing her to bring a sum of Rupees Six lacs from her father and when the said Rekha Jha protested, petitioner assaulted her and also the grandchildren of the informant. Whereafter, the informant filed the First Information Report before the Police Station at Namkum.

(2.) It appears from the record that by order dated 24.4.2015, lower court record was called for from the court concerned and on perusal of the said record, it appears that on 27.8.2011, the First Information Report was placed before the learned Chief Judicial Magistrate and by the second order dated 2.5.2012, the record was transferred to the Court of Shri Manish, Judicial Magistrate, Ranchi. The very next order dated 11.4.2013 discloses that on an application filed by the Officer -in -Charge, Namkum Police Station, Ranchi the court after perusing the execution report of the non -bailable warrant, issued process under Sec. 82 of the Code and the court has only stated in the order -sheet that seen the execution report of the non -bailable warrant and the prayer to issue process was allowed. From the 4th order dated 29.5.2013, it appears that the case record was transferred to the Court of Smt. Shweta Kumari from the Court of Shri Manish, Judicial Magistrate, 1st Class, Ranchi and thereafter on three subsequent dates the court has only recorded that final form has not yet been received. There is no any other order either issuing non -bailable warrant or showing satisfaction or declaring the petitioner as absconder. However, from perusal of papers available in the record of lower court it transpires that earlier Officer -in -Charge of Namkum Police Station had filed an application before the Court of Judicial Magistrate, 1st Class, Sri Gulam Haider whereafter the warrant of arrest was issued as the offence alleged was non -bailable in nature.

(3.) Mr. Gadodia, learned counsel appearing for the petitioner assailing the order impugned seriously contended that on mere perusal of the order -sheet maintained by the court concerned, it appears that the court had taken the entire proceeding very leisurely and even did not care to maintain the order -sheet as it is not clear from the order -sheet when the warrant of arrest against this petitioner was issued. Relying upon the two judgments of State of Madhya Pradesh vs. Pradeep Sharma reported in : (2014) 2 SCC 171, Inder Mohan Goswami and Anr. vs. State of Uttaranchal and Ors. reported in : (2007) 12 SCC 1 : [2008 (1) JLJR (SC) 82] learned counsel submitted that without complying the mandate of Sec. 82 of the Code, issuance of process amounts to interference with the personal liberty of an accused and that though Sec. 73 confers the power upon a Magistrate to issue warrant of arrest against the person who is an accused of non -bailable offence if he is evading arrest but the process/proclamation under Sec. 82 of the Code cannot be issued unless the court declares the person as proclaimed offender in terms of Sec. 82 of the Code and that the subjective satisfaction of the court must appear from the order -sheet itself.