Quashed

Jaffar Shekh v. the State of Jharkhand

Jharkhand HC16 Mar 2023Cr.M.P./759/2022

Case brief

AI extract

What is this about?

The High Court quashed an order issuing process under Section 82 Cr.P.C. for lacking application of mind on the ground of absconding. However, the Court directed the petitioner to surrender within 60 days or face a fresh prosecution order.

What did the court decide?

Quashed the order dated 28.01.2022; directed petitioner to surrender within 60 days or face fresh Section 82 Cr.P.C. order.

Jaffar Shekh Vs the State of Jharkhand — Child Sexual Offences (POCSO) | Jharkhand HC (2023)

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1 Cr.M.P. No. 759 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 759 of 2022

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Jaffar Shekh Jafar Sk., Age about-31 years, S/o- Samed Ali Shekh, resident of village- Naya Anjana, P.O.- Pakur, P.S.- Pakur (Mufassil), District- Pakur, Jharkhand …... Petitioner

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Versus State of Jharkhand ….. Opposite Party For the Petitioner : Mr. Shahid Yunus, Adv. For the Opposite Party : Ms. Vandana Bharti, Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed with a prayer to quash the order dated 28.01.2022 passed by learned Additional Sessions Judge-I-cum- Special Judge, POCSO, Pakur by which, the process under Section 82 Cr.P.C. has been issued against the petitioner.

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Learned counsel for the petitioner submits that learned Additional Sessions Judge-I-cum- Special Judge, POCSO, Pakur who passed the order dated 28.01.2022 for issuance of process under section 82 Cr.P.C., has passed the said order without application of judicial mind. It is next submitted by learned counsel for the petitioner that the petitioner filed the anticipatory bail petition which was rejected by learned Additional Sessions Judge, I-cumSpecial Judge, POCSO Act cases, Pakur vide order dated 11.01.2022. It is next submitted that the petitioner is ready and willing to co-operate with the proceedings as well as the investigation of the case hence, it is submitted that the order dated 28.01.2022 passed by learned

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Cr.M.P. No. 759 of 2022

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Additional Sessions Judge-I-cum- Special Judge, POCSO, Pakur be quashed.

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Learned Addl. P.P., on the other hand, vehemently opposes the prayer for quashing the said order dated 28.01.2022 and submits that the petitioner is not co-operating with the investigation of the case nor he is appearing in the trial court and in fact, he is absconding. It is next submitted by the learned counsel for the petitioner that since the petitioner has submitted before this court that he is ready and willing to co-operate with the proceedings as well as the investigation of the case, hence, the petitioner be directed to surrender before the court below.

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Perusal of the record reveals that the impugned order passed by learned Special Judge, POCSO Act Cases, Pakur, reads as under: “The petition is pressed today. After having heard and

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gone through the case record, the prayer is allowed. The office is directed to issue the process 82 Cr.P.C.

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against the accused Jafar Sk.”

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It is crystal clear that learned Special Judge, POCSO Act cases, Pakur has not assigned any reason as to on what basis , he was satisfied and had reason to believe that the petitioner, against whom warrant was issued, absconded or was concealing himself, so that the warrant issued could not be executed. The impugned order does not disclose the application of mind and the basis for recording its satisfaction that the petitioner is absconding. Hence, in the considered opinion of this Court, the impugned order is not sustainable in law, accordingly, the order dated 28.01.2022 passed in Pakur (M) P.S. case no. 91 of 2021 passed by learned Special Judge, POCSO Act Cases, Pakur, is quashed and set aside.

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But as the petitioner has submitted that he is ready and willing to co-operate with the proceedings before the trial court as well as the investigation of the case, pending against him vide Pakur (M) P.S. case no. 91 of 2021, in the court of Special Judge, POCSO Act Cases, Pakur, the petitioner is directed to surrender before the court below within sixty (60) days from the date of this order,

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3 Cr.M.P. No. 759 of 2022

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failing which, it would be treated that the petitioner is absconding and learned Special Judge, POCSO Act Cases, Pakur is directed to pass a fresh order issuing the proclamation under Section 82 of Cr.P.C. in respect of the petitioner in Pakur (M) P.S. case no. 91 of 2021.

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This Criminal Miscellaneous Petition is disposed of accordingly.

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(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 16^th March, 2023 Smita /AFR

Jaffar Shekh v. the State of Jharkhand

Case brief

What is this about?

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Jaffar Shekh v. the State of Jharkhand

Case brief

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