Court Must Record Its Satisfaction That Accused Is Absconding/Concealing Himself Before Issuing Proclamation U/S 82 CrPC: Jharkhand HC

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.

Petitioner sought to quash three orders passed by the SDJM in connection with a case.

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.”

Advocate Asif Khan appeared for the Petitioner and Advocate Vandana Bharti appeared for the State.

The petitioner's counsel argued that there is no evidence to suggest the petitioner was evading arrest, the due process wasn't followed for issuing the proclamation, and the attachment order lacks details about the property.

The Court found the first order unsustainable as there was no evidence of the petitioner evading arrest. The Court added, “this court finds that 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.”

The second order, issuing the proclamation, was deemed illegal as it lacked the necessary recording of the accused's absconding status and a specified time and place for appearance. The Court said, “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, the third order, for property attachment, was deemed unsustainable due to lack of property description and reasons for attachment. The Court added, “it is pertinent to mention here that 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.”

Consequently, all three orders were quashed and set aside. The Court instructed the SDJM to issue fresh orders in accordance with the law.

As a result, the criminal miscellaneous petition was allowed.

Cause Title: Julekha Khatoon v. The State Of Jharkhand

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