Criminal courts must establish evidence of abscondance and no immediate arrest before proceeding under relevant sections of law.

ORDER

13.08.2025

1. Heard.

2. Through the medium of the instant petition filed under the provisions of Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the ‘ BNSS ’ for short), the petitioner has sought the quashment of the order dated 12.12.2022 of the learned Principal Sessions Judge (Special Judge under ‘NDPS’ Act), Kupwara (hereinafter referred to as the ‘Trial Court’ for short) as being illegal and against procedure.

3. The case of the petitioner in nutshell is that he has been involved in the case FIR No. 72/2022 dated 15.10.2022 of P/S Sogam under Section 8/20, and 29 NDPS Act on the mere disclosure statement unproceeded by any sort of recovery made by the co-accused who were allegedly apprehended on the incident day from a public bus carrying contraband narcotic drug i.e., charas. That he was not aware of his alleged involvement in the case FIR during the investigation of the case and now the fact has been learnt by him after the presentation of the final report in the case FIR during the trial of the same. That at the time of presentation of the final report/challan, the SHO concerned/IO of the case made a request before the learned Trial Court for initiation of proceedings under Section 299 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’ for short) corresponding to Section 335 of BNSS on the mere allegation of his avoiding the process of law and absconding to evade the arrest. That the learned Trial Court vide its order dated 12.12.2022 passed on the final report/challan initiated proceedings under Section 299 of the Code against him on the mere asking of the Investigating Officer concerned. That the trial of the case is at its advanced stage and some of the prosecution witnesses have already been recorded. That the order dated 12.12.2022 of the learned Trial Court is bad in law for having been passed on the mere asking of the IO without recording its own satisfaction on the basis of documents i.e., proclamation and warrant of arrest.

4. It is submitted by the learned counsel for the petitioner that the initiation of proceedings under Section 299 of the Code against the petitioner can have adverse effects on his credibility. It is also submitted by the learned counsel, that petitioner is not at all involved in the case concerned and has been falsely and frivolously involved in the same on the mere disclosure of the co-accused.

5. The perusal of the impugned order dated 12.12.2022 of the learned Trial Court clearly reveals that the proceedings under Section 299 of the Code corresponding to Section 335 of BNSS were initiated against the petitioner on the mere asking of the Investigating Officer. The learned Trial Court was required to satisfy itself on the basis of documents that the petitioner, as alleged, can be supposed to be absconding with no immediate prospect of his arrest through normal process.

6. The learned counsel for the petitioner in support of his arguments placed reliance on an authoritative judgment of the Hon’ble Supreme Court of India in “ Jayendra Vishnu Thakur vs. State of Maharashtra and Anr (2009) AIR SCW 3898” decided on 11^th May, 2009. It is profitable to reproduce the Para-10 of the judgment for ready reference.

“10. Mr. Manoj Goel, learned counsel appearing on behalf of the appellant, inter alia would submit: -

1.The impugned order is wholly unsustainable as the Designated Judge, TADA, in its order dated 1st January, 1994 on the application under Section 299 of the Code did not assign sufficient and cogent reasons which would satisfy the jurisdictional facts contained in first part thereof or the legal requirements contained in the second part.

2.Since the jurisdictional facts require proving of not only the abscondance of an accused bu