IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1393 of 2009 DINESH KUMAR PANDEY @ DINESH KUMAR PANDEY DIWAKAR Versus STATE OF BIHAR & ANR ----------- 2/ 2.4.2010 Heard Shri Manan Kumar Mishra, learned senior counsel for the petitioner and learned APP for the State. Finding that there are multiple prayers which have been placed before this court to be considered, as may appear from the statements of facts made in paragraph 1, the court wanted the learned counsel for the petitioner to specify as to what order he wants to challenge before it. It is contended that the order of summoning the petitioner to face trial is not challenged and the petitioner wants to challenge the order dated 1.9.2006 passed by Judicial Magistrate, Gopalganj in Case No. 125 of 1994 (Tr. No. 765 of 1994), by which the petitioner was declared permanent absconder under section 299 of the Code of Criminal Procedure (hereinafter referred to as the Code) and permanent warrant of arrest was directed to be issued. Different orders passed by the Magistrate have been annexed in a true typed copy form as Annexure 2 to the present petition and during the course of hearing, photo copy of the certified copy of the order sheet was also produced before the court, which indicates that summons were issued to procure attendance of the accused, but there does not appear any order that any execution report was received by the magistrate in pursuance 2 of the service of summons. However, without there being any service report of the summons issued against the petitioner, warrant of arrest bailable and thereafter non-bailable was issued. Non bailable warrant was issued on 31st August, 1999, as may appear from the margin of order dated 2.8.1999. The orders passed subsequent to that date, i.e., 2.8.1999, also do not indicate that there was any report on the non bailable warrant of arrest as to why the process was not executed against the petitioner. However, all on a sudden, the Magistrate directed the issuance of processes under sections 82/83 of the Code, as may appear from orders dated 28.3.2005 and 29.3.2005 and the warrant of arrest was issued. There being no report again on the processes issued, the order on 1.9.2006 was passed by which the petitioner was declared an absconder under section 299 of the Code. Section 299 of the Code reads as under: “ Record of evidence in absence of accused. ---(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 charged, 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 3 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.” A perusal of the above provision may indicate that certain facts have to be proved before an order under section 299 of the Code is passed. Besides, before passing the order under that section, the court has to record the deposition of the prosecution witnesses. The first thing which is required to be proved is that the accused person had absconded. The next fact which is required to be mentioned is that there is no immediate prospect of arresting the accused and the third thing which the court has to do is that in absence of the accused, it has to record the deposition of witnesses produced before it by the prosecution so that the deposition so recorded, may be used when the accused is arrested. It may be pointed out that section 299 of the Code is a code within the Code. It contains the full fledged code as to how a court has to act under section 299 of the Code so as to declare the accused a permanent absconder and what facts are required to be proved as also what act is required to be done before that order is passed. It may further be pointed that when a procedure is directed to be followed for doing a particular act, then the act must be done in accordance with that procedure or not at all. If the court was not following the procedure which was laid down by section 299 of the Code, then it could be said that it did not have any jurisdiction to proceed under section 299 of the Code to declare an accused a permanent absconder and to direct the issuance of 4 warrant of arrest permanently against him. On perusal of the whole order sheets of the above noted complaint case, what this court finds is that the learned Magistrate who passed the order on 1.9.2006, was not adhering to the procedure contained in section 299 of the Code and was adopting a totally hybrid procedure which was unknown to the scheme of the Code. Order passed on 1.9.2006 appears absolutely outside the four corners of the provision of section 299 of the Code and the same could not be approved. In the result, the order passed on 1.9.2006 is hereby quashed. The Magistrate shall proceed in the above noted case from the stage prior to order dated 1.9.2006. The Magistrate is directed to adhere to the provision of section 299 of the Code if he is desirous of acting under that provision or else to proceed as per the normal course which could be set down by the Code. The petition is allowed in the terms as indicated above. Anil/ ( Dharnidhar Jha, J.)