IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25828 of 2000 RAMESH PRASAD SINGH Versus STATE OF BIHAR ----------- 3/ 24.6.2010 Heard Shri Akhileshwar Prasad Singh and also heard Shri Dashrath Mehta, learned APP for the State. By order dated 10/11.2.2000 the petitioner was declared permanent absconder under section 299 of the Code of Criminal Procedure (hereinafter referred to as the „Code‟) by the Judicial Magistrate Ist Class, Patna in G.R. Case No. 1103 of 1996 / Tr. No. 582 of 1996. The petitioner has preferred this petition for seeking the quashing of the above noted order. For disposal of the present petition, it is not necessary to state the facts of the case except that the petitioner was summoned on submission of charge sheet by the police under sections 279 and 427 of the IPC. Understandably, the petitioner was on bail, he had to be informed that he was required to appear before the court. Accordingly, an order was passed on the same day, i.e., on 12.8.1996, on which the order of summoning and cognizance was passed. There was no report in spite of issuing summons 2 on 6.9.1996 as to what happened of that summons. All of a sudden, the court was directing issuance of summons/bailable warrant of arrest against the petitioner by its order dated 28.7.1997 and the same appears issued on 13.8.1997. Again, there was no execution report or any report as to why the bailable warrant could not be executed as against the petitioner. The Court did not seek any report from the executing agency as regards the summons or bailable warrant and by an order dated 13.11.1997, directed the issuance of non-bailable warrant of arrest against the petitioner. The same was issued on 21.1.1993 and there were reminders issued by the court also, as may appear from the margin of the order sheet. Not getting the petitioner before it nor getting the report on the process, the court directed the issuance of processes under sections 82/83 of the Code and accordingly, the same were issued on 13.5.1998. Again there was no report on processes under sections 82/83 of the Code and the court proceeded to declare the petitioner an absconder as indicated above. The provision of section 299 of the Code reads as under: “299. Record of evidence in absence of accused. ---- 3 (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try [or commit for trial] such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charges, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.” From the perusal of the above provision, one may 4 find that some proof is required of one fact or the other prior to the Court could proceed to record the deposition of the witnesses of the prosecution ahead of it declares the accused an absconder under section 299 by passing an order. The first fact which is to be proved is that an accused has absconded and further that there was no immediate prospect of the accused being arrested. The proof has to be placed of the above two facts before a court which is competent to try the offence or is competent to commit the case for trial to the court of Sessions. As soon as the proof of the two facts are received or found by a court through appropriate materials, then the other duty which is enjoined upon it by the provision is that the court shall proceed to record the deposition of the witnesses who might be required to be examined during the course of trial of that person by a court of law. These are the three conditions which are pre-requisite for passing an order under section 299 of the Code. Besides the above, what may appear from the reading of provisions under sections 82/83 of the Code is that it is not that the court should issue processes under those sections as and when it desired to do it. Section 82 of the 5 Code indicates that if any court has reason to believe 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, then only the proclamation under section 82 of the Code could be issued. The Court which desires to proceed under section 82 of the Cr.P.C., as may appear, has to satisfy itself about the existence of the reasons to base its belief about the abscondance or concealment of the accused. It may take evidence in that behalf or may draw its satisfaction on some other materials which could be sufficient for a Court to draw sustenance on them to believe the existence of the above fact. The quality of the material which could make the Court to believe, as may appear from the language directing and direct not leaving any scope to have two views about the abscondance or concealment of the deceased. When the Court has drawn its belief on satisfactory and sufficient materials placed before it by the agency which has to publish the proclamation, it could then issue the proclamation for being published in manner as directed by Section 82(2) of the Cr.P.C. The proof of publication of the proclamation could be 6 acceptable only when the Court has drawn up a statement in writing about the publication of the proclamation as per the provisions of the section. What may appear from the above is that it is a matter which touches upon the jurisdiction of the Court to issue a process under section 82 of the Code. The magistrate should exercise the jurisdiction as created by provision under section 82 of the Code in the manner as discussed above. If the above procedure in issuing a proclamation is not adopted and acted upon, the Court could not be said to have exercised its jurisdiction appropriately and as per law. Not only that, the Court, if he issued the proclamation after satisfying the conditions as are laid down by section 82 of the Code, it has to wait for thirty days from the date of publication of the proclamation against the absconding person. It is only after the elapse of thirty days from the date proclamation was published at the appropriate place or in the appropriate manner as directed by section 82(2) of Cr.P.C. The Court could have the jurisdiction to act under section 83 of the Code, to issue a process of attachment and that too when the conditions laid down under section 83(1) proviso have been 7 brought before the Court to its satisfaction by the mode indicated in that particular provision. Mere production of the material to satisfy the Court may not be enough, the Court has to record it and support it with reasons in writing. If a Court does not have any thing before it to satisfy it about the two conditions under section 83(1) proviso, then it does not have any jurisdiction to issue order to attach the properties of an accused. It is really unfortunate that the Magistrates are acting in complete derogation of the two provisions and are issuing processes simultaneously in most of the districts of the State without the case being covered by section 83(1) of the Cr.P.C. The indifferent attitude of the magistrates not to consider the provision and act accordingly, could be one reason as to why persons are being declared permanent absconders under section 299 of the Code. If they could have simply looked to the provisions, as appears not done in the present case also, the magistrate could never have issued an order under section 299 of the Code. Provisions of the Code, like, sections 82/83 or 299 are provisions which create separate, important jurisdictions 8 for doing a particular act or issuing a particular process of the court for execution and those are hummed by certain conditions. If the conditions are not fulfilled as is required by section 299 of the Code, then the magistrate would never have the jurisdiction to act either under sections 82/83 or under section 299 of the Code and declare a person permanent absconder. As such, the order which has been sought to be quashed through the present petition, appears passed without jurisdiction and also in absence of the proof as is required by that provision. In the result, the petition succeeds and the same is hereby allowed. Order impugned is quashed. The magistrate is directed to proceed with the case from the stage as if he had not passed that particular order. Anil/ ( Dharnidhar Jha, J.)