Amresh Rai @ Guddu Rai v. The State of Bihar

The First Information Report is against unknown regarding Bank dacoity. However, the petitioner’s name finds place during investigation and charge-sheet submitted. The is at the stage of commitment. The petitioner apprehended and was enlarged on bail. However, thereafter petitioner was arrested in connection with a case registered in Patna High Court Cr.Misc. No.44603 of 2012 (3) dt.14-01-2013 Gopalganj District and is in Gopalganj jail. He filed a petition that a Production Warrant may be issued for his appearance in the present case i.e. Govindganj P. S. Case No. 127 of 1999 before the S.D.J.M., Motihari. However, Production Warrant was issued but he was not produced or remanded in this case but his case was bifurcated from the case of co-accused, Binda Rai. The case of Binda Rai was committed to the court of Sessions. After bifurcating of the case of petitioner it was ordered that process be issued under Sections 82 and 83 of the Cr. P. C. By the impugned order it has been ordered that the service report of process under Sections 82 and 83 of the Cr. P. C. has not been received so the petitioner is declared absconder. The order was challenged in revision but in vain. Learned counsel for the petitioner, however, contended that neither any warrant of arrest was issued against the petitioner nor there is any report or process issued under Sections 82 and 83 of the Cr. P. C. has been received but the petitioner has been declared absconder and order has been passed for recording evidence under Section 299 of the Cr. P. C. which is not sustainable. Section 73 of the Cr. P. C. provides that the Chief Judicial Magistrate or a Magistrate of the first class may direct Patna High Court Cr.Misc. No.44603 of 2012 (3) dt.14-01-2013 a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. Section 82 of the Cr. P. C. provides that if Any Court has reason to believe (whether after taking evidence or not) 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, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation. Section 83 of the Cr. P. C. provides that the Court issuing a proclamation under Section 82 of the Cr. P. C. may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,- (a) is about to dispose of the whole or any part of his Patna High Court Cr.Misc. No.44603 of 2012 (3) dt.14-01-2013 property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with issue of proclamation. Section 299 of the Cr. P. C. provides that “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 ...........”. However, the scheme of Act for recording evidence against a person in his absence and treating the evidence recorded against the petitioner in his absence requires that it is proved that accused has absconded proved means a finding by Court that he is absconding but the same has not been complied with as neither warrant of arrest was issued against the petitioner nor service report received nor the condition for issuance of process under Sections 82 and 83 of the Cr. P. C. simultaneously has been complied with nor any report of the Patna High Court Cr.Misc. No.44603 of 2012 (3) dt.14-01-2013 I.O. that he is likely to remove or dispose of property from the jurisdiction nor there is any report on process issued under Sections 82 and 83 of the Cr. P. C that the petitioner is absconding as neither there is any report on process issued under Sections 82 and 83 of the Cr. P. C. and hence the order passed by the learned District Judge and the order under challenge in revision before the learned District Judge are hereby set aside and the petition is allowed. Learned counsel for the State, however, submits that impugned order itself indicates that the order declaring the petitioner as absconder has been passed with a direction to record evidence under Section 299 of the Cr. P. C. when there is specific mention that the process issued under Sections 82 and 83 of the Cr. P. C. has not been complied with. Hence, the order impugned is hereby set aside along with the order of the learned Magistrate and the learned lower court is directed to proceed in accordance with law after due production of the petitioner from Gopalganj jail. Let this order be communicated though FAX at the cost of the petitioner. Kundan/- (Gopal Prasad, J.)