JHARKHAND HIGH COURT ISSUES ORDER ON JITENDRA KUMAR GUPTA V/S THE STATE OF JHARKHAND

RANCHI, India, Nov. 4 -- Jharkhand High Court issued the following order on Oct. 6:

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of BNSS 2023 with the prayer to quash the orders dated 25.01.2005 and 17.03.2012 passed in connection with C.F.Case no. 87 of 2001 passed by learned Judicial Magistrate, Garhwa whereby and where under, learned Magistrate without recording any satisfaction, has ordered for issuance of non-bailable warrant of arrest, along with the process under Section 82 and 83 of CrPC.

3. It is submitted by learned counsel for the petitioner that learned Magistrate has not recorded any satisfaction that the petitioner, who is the accused person of the case, is evading his arrest, hence, he ought not have issued non-bailable warrant of arrest and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest, learned Magistrate ought not have issued the proclamation under Section 82 of CrPC. It is next submitted that in the absence of any material to show that the petitioner is about to dispose of whole or any part of the property or is about of remove whole or any part of the property from the local jurisdiction of the court concerned, learned Magistrate, ought not have issued the attachment order of the property of the petitioner, under Section 83 of CrPC, simultaneously with the order of issuance of proclamation under Section 82 of CrPC, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

4. Learned Spl. PP on the other hand vehemently opposes the prayer of the petitioner and submits that the very fact that the learned Judicial Magistrate, Garhwa has issued the non-bailable warrant of arrest, proclamation under Section 82 of Cr.P.C. and attachment order of property under Section 83 of Cr.P.C. itself shows that there were ample materials available in the record for the learned Judicial Magistrate, Garhwa to be satisfied for issuance of non-bailable warrant of arrest, proclamation and the attachment order, hence, it is submitted that this Criminal Miscellaneous Petition being without any merit, be dismissed.

5. Having heard the submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that Section 73 of the CrPC, 1973 empowers a Magistrate of First class, to direct warrant to any person within his local jurisdiction for the arrest, inter alia, if the person is accused of a non-bailable offence and is evading his arrest.

6. Now coming to the facts of the case, the undisputed fact is that the petitioner is involved in commission of offence punishable under Sections 26, 41, 42 and 52 of the Indian forest Act, as amended by Bihar Amendment Act, 1989. As per the Bihar Amendment Act 9 of 1990, the offences punishable under Section 26 are non-bailable offences. Similarly, by virtue of Bihar Amendment Act 9 of 1990, the offence punishable under Section 42 of the Indian Forest Act is also non bailable in nature but perusal of the record reveals that neither there is any material which goes to show that the petitioner is evading his arrest nor learned Magistrate has recorded his satisfaction that the accused person of the case, in respect of whom non-bailable warrant of arrest has been issued, is evading his arrest before issuing the non-bailable warrant of arrest. Hence, this court has no hesitation in holding that learned Magistrate has committed an illegality by issuing the non-bailable warrant of arrest by the impugned judgment.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=A9S7c5LDIsB6RXaCf816x3BDLLXv3nHfLefxunOndp1mL2LbKgjTLURY6L6c0pSg&caseno=Cr.M.P./2859/2025&cCode=1&cino=JHHC010329192025&state_code=7&appFlag=)

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