Avinash Kumar @ Avinash Yadav vs State Of Jharkhand
2021 Latest Caselaw 1153 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P No. 2507 of 2020
      Avinash Kumar @ Avinash Yadav                  .... .... Petitioner(s).
                                 Versus
      State of Jharkhand                             .... .... Opposite Party(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

THROUGH : VIDEO CONFERENCING

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FOR THE PETITIONER(S) : Mr. Sanjay Kumar Pandey-2, Advocate FOR THE STATE : Mr. Kaushik Sharkhel, GA-V

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04/08.03.2021 The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 11.00 A.M. They have no complaint in respect to the audio and video clarity and quality.

2. Heard learned counsel appearing for the petitioner(s) and the learned Counsel for the State.

3. By filing this application, petitioner has prayed to quash the order dated 7.9.2020 passed in Barkagaon P.S. Case No. 120 of 2020 by Additional District Judge-I-Cum- Special Judge, POCSO Act, Hazaribagh by which process under Section 82 Cr.P.C has been issued.

4. In a most mechanical manner, ignoring the order of this Court passed in the case of Md. Rustum Alam @ Rustam & Ors Vrs. State of Jharkhand in Cr.M.P No. 2722 of 2019 and even inspite of the fact that the said order of this Hon'ble High Court was directed to be circulated to all the courts concerned in the case of Arshad Ayub Vrs. State of Jharkhand passed in Cr.M.P No. 609 of 2020, impugned order dated 7.9.2020 has been passed, issuing process under Section 82 Cr.P.C.

5. From the impugned order, I find that the Court below has only narrated that the investigating officer has submitted service report of non bailable warrant of arrest and, thereafter in a most mechanical manner process has been issued. Subjective satisfaction has not been recorded in the impugned order, which is the mandate of law in terms of Section 82 Cr.P.C.

Pursuant to the said order, Form-IV Cr.P.C was issued on 9.9.2020, directing the petitioner to appear on 9.10.2020. It is very surprising that the court below even forgot the basic mandate of Section 82 Cr.P.C which requires that minimum thirty days' time has to be granted to the petitioner to appear from the date of publication of the process. In this case thirty days from issuance of the process has been given. The court below has failed to differentiate between the "date of publication" and the "date of issuance". The date of issuance of process under Section 82 Cr.P.C is not the date of publication. How a process has to be published is enshrined in the Section 82 Cr.P.C itself.

6. This action of the court concerned clearly suggests that ignoring the provision of law, in a most arbitrary and most mechanical manner, irresponsibly the court below i.e Additional District Judge-I-Cum-Special Judge, POCSO Act, Hazaribag has passed the order dated 7.9.2020.

7. Further the irresponsibility is writ large on the facts that inspite of the detailed order passed by this Court which has been circulated to all the Judges concerned, ignoring the same, the impugned order has been passed.

8. The Court below tried to explain but the explanation cannot be accepted because what he has tried to explain is not in the order sheet. In this case the mandatory provision of Section 82 Cr.P.C has been given a go-bye and the judgement of this Hon'ble Court passed in the case of Md. Rustum Alam @ Rustam & Ors Vrs. State of Jharkhand in Cr.M.P No. 2722 of 2019 has also been given a go-bye.

9. Seeing no other alternative, I am quashing the aforesaid order dated 7.9.2020 passed by Additional District Judge-I- Cum-Special Judge-POCSO Act, Hazaribag as same is unreasoned, which does not reflect subjective satisfaction as mandated by the law and by the judgment passed by this Court in the case of Md. Rustum Alam @ Rustam (supra), taking into consideration the fact that the procedure followed, is not in terms of the law which has been explained in the aforesaid judgment.

10. Accordingly this Criminal Miscellaneous Petition is allowed.

11. The matter is remitted to the court below to pass a fresh order in accordance with judgment passed by this Court in the case of Md. Rustum Alam @ Rustam (supra).

12. This type of unreasoned and nonspeaking orders in relation to Section 82 Cr.P.C are being delivered by the court below on regular basis despite of the order passed by this Court in the case of Md. Rustum Alam @ Rustam (supra). This unnecessarily burdens the High Court. The disturbing aspect is that inspite of circulation of the order, the Judicial Magistrate and even the Additional Sessions Judges are passing same type of orders which are non-speaking and unreasoned, which do not comply with the basic provision of Section 82 Cr.P.C.

13. Considering the aforesaid fact, let a copy of this order be placed before Hon'ble the Chief Justice, requesting him for taking appropriate, suitable, corrective and remedial action in this matter.

14. I direct the Registry to place this order before Hon'ble the Chief Justice.

(ANANDA SEN , J) anjali/ C.P 3