The Jharkhand High Court reiterates that the court should be satisfied that the accused is absconding before it embarks on exercising powers under section 82, 83 Cr. PC.

The Jharkhand High Court has allowed a petition under section 482 of the Cr.PC which was filed with twin prayers to quash the orders dated 31.01.2024 and 05.03.2024 passed by the learned Special Judge, POCSO Act Cases, Chatra but the learned counsel for the petitioner did not press the prayer to quash the order dated 31.01.2024 by which non-bailable warrant of arrest was issued against the petitioner in connection with Simariya P.S. Case No. 07 of 2024 and confined his prayer to quash the order dated 05.03.2024 passed by the learned Special Judge, POCSO Act Cases, Chatra in connection with Simariya P.S. Case No. 07 of 2024 by which proclamation under Section 82 Cr.P.C. had been issued without complying with the due procedure of law.
 
The brief facts of the case are that on 05.03.2024 the investigating officer of the case filed an application in the court of learned Special Judge POCSO Act Cases, Chatra with a prayer for issue of the proclamation under Section 82 Cr. PC and upon such prayer being made, the learned Special Judge, POCSO Act Cases, Chatra issued the proclamation under Section 82 Cr.PC.
 
The High Court held thus:
 
“Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that by now 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 accused persons of the case, in respect of whom the proclamation is issued, in the order itself, by which the proclamation under Section 82 of Cr.P.C. is issued.

As already indicated above since the learned Special Judge, POCSO Act Cases, Chatra has not categorically recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest but has only mentioned that it is likely that the petitioner may evade the process of law and has not fixed any time or place for appearance of the petitioner who is the accused person of this case, this Court has no hesitation in holding that the learned Special Judge, POCSO Act Cases, Chatra has committed gross illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying the mandatory requirements of law. Hence, the same is not sustainable in law and the continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 05.03.2024 passed by the learned Special Judge, POCSO Act Cases, Chatra in connection with Simariya P.S. Case No.07 of 2024 be quashed and set aside.”

Sanjay Pandey vs The State of Jharkhand