Proclamation | Before Exercising Powers U/S 82, 83 CrPC Court Should Be Satisfied That Accused Is Absconding: Jharkhand High Court Reiterates

The Jharkhand High Court has made it clear that before issuing a proclamation under Section 82 of the Cr.P.C, Court must adequately record satisfaction regarding the accused's absconding status or that accused is concealing themselves to evade arrest. It thus quashed an order passed by a Special POCSO Court.

Justice Anil Kumar Choudhary observed, “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,” Justice Choudhary added.

The aforementioned ruling was delivered in a criminal miscellaneous petition filed under Section 482 of the Cr.P.C. The petition sought to quash two orders issued by the Special Judge, POCSO Act Cases, Chatra, dated 31.01.2024 and 05.03.2024. However, during the proceedings, the petitioner's counsel decided not to press for the quashing of the order dated 31.01.2024, which pertained to the issuance of a non-bailable warrant of arrest against the petitioner in connection with a case. Instead, the focus was solely on quashing the order dated 05.03.2024, wherein the Special Judge had issued a proclamation under Section 82 of the Cr.P.C. without following due procedure.

According to the case's factual context, on 05.03.2024, the Investigating Officer (I.O.) submitted an application to the court of the Special Judge, POCSO Act Cases, Chatra, requesting the issuance of a proclamation under Section 82 of the Cr.P.C. Subsequently, upon the I.O. 's request, the Special Judge, POCSO Act Cases, Chatra, issued the said proclamation under Section 82 of the Cr.P.C.

The petitioner's counsel argued that the proclamation issued under Section 82 of the Cr.P.C. lacked essential details such as time and place for the petitioner's appearance, which goes against settled principle of law, and hence, it was submitted that the order dated 05.03.2024 be quashed and set aside.

On the other hand, the Special Public Prosecutor contested the plea to annul the aforementioned order, asserting that the issuance of the proclamation by the Special Judge, POCSO Act Cases, Chatra, inherently indicated the presence of sufficient evidence in the records to warrant such action.

Having heard the submissions made at the Bar and after going through the materials in the record,the Court pertinently pointed out, “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.”

Accordingly, the Court quashed and set aside the order dated 05.03.2024 passed by the Special Judge, POCSO Act Cases, while directing the Special Judge, POCSO Act Cases, Chatra to pass a fresh order in accordance with law.

In the result, the criminal miscellaneous petition was allowed.

Case Title: Sanjay Pandey vs The State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 56

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