Patna High Court
Abhishek Kumar vs The State Of Bihar on 18 June, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.6089 of 2025
Arising Out of PS. Case No.-94 Year-2024 Thana- KHAJEKALA District- Patna
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Abhishek Kumar S/O Sri Moti Lal Verma Resident Of Village- Sugaon P.S.-
Tehta, Dist- Jehanabad (Bihar)At Present Address- Badaoda Pali, P.S.- Baroda
City Junction, Dist- Baroda (Gujrat)
... ... Petitioner/s
Versus
1. The State of Bihar
2. Jyoti Kumari D/o Krishna Prasad R/o Sadar Gali, Patna City, P.S.-
Khajekalan, Distt.- Patna
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sanchay Srivastava, Adv
: Mr. Sushant Srivastava, Adv
: Mr. Ashish Kumar Palit, Adv
For the Opposite Party/s : Mr. Anant Kumar 1, APP
For the O.P. No. 2 : Mr. Raju Giri, Sr. Adv
: Mr. Harsh Vardhan, Adv
: Mr. Shamsher Prasad, Adv
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
Date : 18-06-2025
Heard learned counsel for the petitioner and
learned counsel for the respondents.
2. The present quashing petition has been
preferred to quash the order dated 07.06.2024 passed in
G.R. No. 1427 of 2024 arising out of Khajekalan P.S. Case
No. 94 of 2024, where learned Judicial Magistrate 1 st Class,
Patna City, has passed an order for the initiation of
proceedings under Section 82 of the Cr.P.C., which has been
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issued on 18.06.2024 against the petitioner/accused.
3. The allegation against the petitioner as per FIR
is to commit rape upon O.P. No. 2 on the false pretext of
marriage, subsequent to his acquaintance with O.P. No. 2 at
a wedding function in Gujarat. It is alleged that all instances
of the purported physical relationship took place at Patna
during the petitioner's visits.
4. The main question which requires adjudication
in the present quashing petition is whether the issuance of
proceedings by learned Trial Court under Section 82 of the
Cr.P.C. against the petitioner was justified or not.
5. Learned counsel appearing on behalf of the
petitioner submitted that before the issuance of proceedings
under Section 82 of Cr.P.C. compliance with mandatory
provisions as available under Sections 61-69 of Cr.P.C.
(Chapter VI-A) and Sections 71-75 of Cr.P.C. (Chapter VI-B)
not appear to be followed in the present case. It is submitted
that the proceeding of this case was not in the knowledge of
the petitioner, and, therefore, the issuance of process under
Section 82 is appearing bad in the eyes of the law. While
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concluding his argument learned counsel relied upon the legal
reports of this Hon'ble Court as available through Krishna
Murari Yadav Vs. The State of Bihar reported through
2005 SCC OnLine Pat 712 & Pinki Kumari and Another
Vs. The State of Bihar and Others reported through
Cr.W.J.C. No. 712 of 2022 dated 26.08.2022.
6. At this stage, it would be appropriate to
reproduce Section 82 of the Cr.P.C. for the better
understanding of the case:-
82. Proclamation for person
absconding.-(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 specified place and at a specified time not
less than thirty days from the date of
publishing such proclamation.
(2) The proclamation shall be published as
follows:
(i) (a) it shall be publicly read in some
conspicuous place of the town or village in
which such person ordinarily resides;
(b) it shall be affixed to some conspicuous
part of the house or homestead in which such
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person ordinarily resides or to some
conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some
conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a
copy of the proclamation to be published in a
daily newspaper circulating in the place in
which such person ordinarily resides.
(3) A statement in writing by the Court issuing
the proclamation to the effect that the
proclamation was duly published on a
specified day, in the manner specified in
clause (i) of sub-section (2), shall be
conclusive evidence that the requirements of
this section have been complied with, and that
the proclamation was published on such day.
[(4) Where a proclamation published under
sub-section (1) is in respect of a person
accused of an offence punishable under
section 302, 304, 364, 367, 382, 392, 393,
394, 395, 396, 397, 398, 399, 400, 402,
436, 449, 459 or 460 of the Indian Penal
Code (45 of 1860), and such person fails to
appear at the specified place and time
required by the proclamation, the Court may,
after making such inquiry as it thinks fit,
pronounce him a proclaimed offender and
make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3)
shall apply to a declaration made by the Court
under sub-section (4) as they apply to the
proclamation published under sub-section
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(1).]
7. Learned senior counsel appearing on behalf of
O.P. No. 2, while opposing the aforesaid prayer, submitted
that the petitioner was working with Indian Railways and was
posted at Vadodara in the state of Gujarat. It is submitted
that the aforesaid act was within the knowledge of the learned
Trial Court, and accordingly a non-bailable warrant was issued
against the petitioner, through the Superintendent of Police,
City East, Patna vide Letter No. 1766 dated 03.05.2024
addressed to the DRM, Ahmedabad Division, Gujarat. The
aforesaid letter was received by DRM Office on 11.05.2024.
It is submitted that thereafter, under Section 70 of the
Cr.P.C. 1973, notice of non-bailable warrant was issued
against this petitioner. It is further submitted that Khajekalan
Police Station by letter dated 10.05.2024, requested the GRP
Police Station in Viramgam Gujarat to help Bihar Police to
arrest the petitioner. It is further submitted that vide letter
dated 11.05.2024, the police made a request to the Senior
Section Engineer (Signal), Viramgam, Western Railway,
pursuant to which it was informed that the petitioner was on
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sanctioned leave from 10.05.2024 to 14.05.2024.
8. It is further submitted that, with an intent to
frustrate the execution of the NBW, the petitioner proceeded
on leave on medical ground after rejoining duty on
10.05.2024
, despite being aware of the issuance of the said
warrant. It is also submitted that to make a prayer of
anticipatory bail petition maintainable, proceedings under
Section 82 of Cr.P.C. were challenged in view of Srikant
Upadhyay and Others Vs. State of Bihar and Another,
2024 SCC OnLine SC 282.
9. It would be apposite to reproduce the para
no(s). 18 & 19 of the Krishna Murari Yadav Case (supra),
which reads as under:-
18. Another order which has been challenged
by the petitioner is the order dated 4.8.2005
passed by the C.J.M., Patna on a petition filed
by the Investigating Officer on 3.8.2005. In
this petition composite prayer has been made
by the Investigating Officer for issuance of the
order of proclamation under Section 82 Cr.
P.C. as well as the order of attachment under
Section 83 Cr. P.C. This unaffidavited petition
has been brought on the record of the case as
Annexure-3. In this petition it has been stated
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that the accused persons are absconding and
there is an apprehension that after disposing of
their movable and immovable property, they
may abscond. The C.J.M., has passed order
under Section 82 Cr. P.C. for proclamation, in
the margin of the petition itself. Counsel for the
petitioner has brought on record the complete
order-sheet of the case as Annexure-4. The
proclamation order under Section 82 Cr. P.C.
has been passed by-the Chief Judicial
Magistrate do not indicate that the court had
any reason to believe that the person against
whom such prayer has been made are either
absconding or concealing themselves even
after issuance of warrant of arrest. Section
82(1) Cr. P.C. reads as follows:–
“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 specified place and at a
specified time not less than thirty days from the
date of publishing such proclamation.”
19. The expression “Reason to believe”
occurring in this section suggests that the
Magistrate must be substantively satisfied that
the person has absconded or has concealed
themselves on the materials before him. Under
Section 82 Cr. P.C. the Magistrate issuing
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the accused has absconded or concealed
himself, the Magistrate can grant permission
for proclamation only on being fully satisfied
and it should never been allowed in a routine
manner. The order which has been passed by
the Magistrate neither shows his satisfaction
nor indicates that he had any reason to believe
for passing such order. The order passed by the
Magistrate is illegal also because on an
unaffidavited petition filed by the I.O. such
order has been passed.
Conclusion:
10. I have perused the materials available on
record and considered the arguments canvassed by learned
counsel appearing on behalf of the parties.
11. In view of the foregoing factual and legal
submissions, it is submitted that the proceedings were well
within the knowledge of the petitioner, and he was duly
informed at all official levels regarding the pendency of the
present matter. However, he intentionally and deliberately
failed to make himself available for arrest, thereby willfully
evading the due process of law. In view of the above the
initiation of proceedings under Section 82 of the Cr.P.C., not
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12. Accordingly, this Court does not find any
illegality in the order dated 07.06.2024 as passed by learned
Judicial Magistrate, 1st Class, Patna City, in connection with
G.R. No. 1427 of 2024 arising out of Khajekalan P.S. Case
No. 94 of 2024 and, therefore, the same does not require
interference by this Court.
13. Hence, the present quashing petition stands
dismissed as being devoid of any merit.
14. Office is directed to sent a copy of this judgment
to the learned Trial Court, forthwith.
15. Pending petitions, if any, disposed of
accordingly.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR NAFR CAV DATE 16.05.2025 Uploading Date 18.06.2025 Transmission Date 18.06.2025