IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16959 of 2002 SHAILESH KUMAR Versus RAJIV RANJAN @ MANTU & ORS ----------- 6. 19.8.2010. Heard Sri Akhileshwar Prasad Singh, learned counsel for the petitioner, Sri Gaurang Chaterjee, learned counsel appearing on behalf of Opposite Party no.2 and the learned A.P.P. for the State. The petition seeks the quashing of order dated 19.2.2000 passed by Sri Mahbood Hasan, Judicial Magistrate, Ist Class, Patna in Complaint Case No.507(C)of 1999 by which he declared Rajiv Ranjan @ Mantu a permanent absconder as could be done under Section 299 of the Cr.P.C. The grievance of the petitioner is that for passing the order, the learned Magistrate was simply seeking a report from Agamkuan police station about the disappearance or killing of the said Rajiv Ranjan alias Mantu as suspected by some one and, accordingly, a report was received which indicated that a Sanha entry was made vide entry no.656 dated 17.7.1998 by which it was reported by the complainant himself that the man had gone missing and considering that - 2 - the impugned order was passed. The contention is that the court ought to have issued process against the said Rajiv Ranjan alias Mantu because there was no report indicating conclusively that the man had died. It was simply a report which indicated that the man had gone missing which could lead the Court to any possibility. It was contended that the court ought to have issued the processes known to law for enforcing the appearance of a person and ought to have awaited a report on them and thereafter on proof of facts which are required to be proved by the provisions of Section 299 could have proceeded to pass an order under that provision of the Cr.P.C. It was further contended that the order appears completely erroneous from the other angle also because the court did not proceed as per the provisions of Section 299 Cr.P.C in the strict sense, because the court even after being satisfied about the reported missing of the said Rajiv Ranjan alias Mantu was not proceeding to record the deposition of the witnesses which is a sine qua non so as to proceeding under Section 299 of the Cr.P.C. - 3 - Section 299 of the Cr.P.C. requires that if it is proved that an accused person had absconded and that there was no immediate prospect of arresting him, the competent court to try 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 which may subsequently be used as evidence if the accused was arrested. There is a series of decisions of this Court that even after there being a proof of the fact about the abscondence of an accused and also of there being no immediate prospect of the accused person being arrested, the court could not proceed to declare a person absconder under Section 299 of the Cr.P.C. unless it had recorded the depositions of the witnesses. I find from the perusal of the impugned order that the learned Magistrate who was proceeding to pass the order declaring the said Rajiv Ranjan @ Mantu absconder had not complied with the provisions of Section 299 of the Cr.P.C. as he did not proceed to record the deposition of witnesses. This is one error upon which the whole order appears vitiated on - 4 - account of non-compliance of the mandatory provisions of Section 299 of the Cr.P.C. The other angle from which I had viewed the order is that the court ought to have made its own efforts by issuing processes which are required to be issued by it. The process could be issued only on conditions in those behalf being fulfilled as appears from Section 82 and 83 Cr.P.C. and then only it could have recorded a finding that the person, namely, Rajiv Ranjan @ Mantu had absconded and there was no immediate prospect of him being arrested. The court appears adopting a completely hybrid procedure which is unknown to law and alien to the provisions of Cr.P.C. On the above facts and circumstances, this petition succeeds. The order dated 19.2.2000 passed by the above noted court in the above noted case is hereby set aside. The petition is allowed. B.Kr. ( Dharnidhar Jha, J. )