IMPORTANT POINT
Warrants of execution of sentence is to be prepared only on basis of judgment and if trial court record was found misplaced and not traceable, warrants could be prepared on basis of certified copy of judgment available on appellate court record.

ORDER

Dhirendra Mishra, J. — This is a reference made by learned 8th Additional Sessions Judge, (Fast Track Court), Durg under Section 395 (2) of the Code of Criminal Procedure, 1973 (for short ‘Code’).

2. From perusal of the record of the court below it appears that a miscellaneous case was registered on the basis of memo dated 9.1.2004 of the District and Sessions Judge, Durg in compliance of memo dated 4.12.2003 of this Court, as certain complaints were received in the High Court that conviction of convict Nand Kishore Khandelwal under Sections 450, 366, 376, 324 & 342 of the Indian Penal Code (for short “IPC”) and sentence of R.I. 1 year, R.I. for 3 years, R.I. for 3 years, R.I. 6 months and fine of Rs. 500 recorded by the Additional Sessions Judge, Durg in S.T. No.

35/76 was confirmed by the High Court in Criminal Appeal No. 804/76 and subsequently, S.L.P. (Criminal) No. 631/1979 was further dismissed by the Hon’ble Supreme Court on 9.2.1994. However, convict Nand Kishore has not surrendered for undergoing the substantive sentence imposed upon him. The original record of Sessions Trial No. 35/76 was received in the Sessions Court, however, the same is not traceable in the record room of the District Court and the same is not likely to be traced. Notice was issued to convict Nand Kishore on 24.12.2005 whereupon he appeared before the trial court on 4.3.2006 through his advocate and his advocate was directed to keep the convict present on each date. However, on the prayer of Nand Kishore that he is not getting justice and he intends to file transfer petition, the proceeding was adjourned for 19.12.2006. On 19.12.2006 no stay order was produced by convict Nand Kishore and an application for exemption from personal appearance on that date was filed, which was rejected by learned Additional Sessions Judge and warrant of arrest was directed to be issued. The trial court has also observed that original record of Sessions Trial No. 35/76 is not available and there is no likelihood of tracing the above record and in this circumstance the preparation of execution warrant in the absence of original record would be contrary to the Rule 384 of the Chhattisgarh Rules & Orders (Criminal) (for short “Rules”) and as such illegal. It has been further observed that Rule 389 provides that warrant and its endorsement must be signed in full by the presiding officer of the court, as the presiding officer is responsible for the correctness of the warrant and he is bound to satisfy himself that it is correct before signing it. Further referring Rule 575 it has been observed that in the register of miscellaneous proceeding only the cases enumerated under Rule 575 are to be entered and without the order of High Court no addition shall be made thereof and therefore, this case cannot be registered without permission of the High Court in the register of miscellaneous proceeding. With these observations

following questions have been raised by way of reference under Section 395 (2) of the Code:

(i) Whether in the absence of original record preparation of execution of warrant would be legal?

(ii) Whether it would be legal for the Presiding Officer to make endorsement and put his signature in the execution warrant of sentence?

(iii) Whether without specific order of the High Court the present case may be entered in the register of miscellaneous proceeding?

3. Needless to say that a reference on a question of law should be made by a Subordinate Court under sub-section (2) of Section 395 of the Code only for some compelling reasons in extraordinary circumstances. In the instant case there is no factual dispute, as the conviction of convict Nand Kishore recorded by the Sessions Court has been subsequently confirmed by the High Court and thereafter a S.L.P preferred by the convict has also been dismissed by the Supreme Court way back in the year 1994. It is also not in dispute that the accused was on bail during pendency of his appeal before the High Court a