Jammu & Kashmir High Court – Srinagar Bench
Mohammad Sidiq Lone vs Union Territory Of J And K And Ors on 13 August, 2025
Serial No. 126
Supplementary Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) 471/2025 CrlM 1133/2025
Mohammad Sidiq Lone ...Petitioner/Appellant
Through: Mr. S.M. Saleem, Advocate.
Vs.
Union Territory of J and K and Ors.
...Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE.
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 11th 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 but also a situation where
immediate prospect of his arrest was absent and which being
a condition precedent; and as in the facts and circumstances of
this case the appellant’s presence could have been obtained as
he was under arrest in a Delhi case which fact was known to
the prosecution, the impugned order cannot be sustained.
3. Right to confront a witness being a fundamental right in
terms of Article 21 of the Constitution of India and Section
299 of the Code being an exception thereto, the same should
be strictly construed.
4. Admittedly appellant having been arrested by the Delhi
police on 23rd July, 1993 and in all subsequent applications
as also in the letters the prosecution it having not been shown
that the appellant had been absconding, the order of the
learned Designated Judge dated 1st January, 1994 must be
held to be illegal and without jurisdiction.
5. The legal requirements to attract the provisions of Section
33 of the Evidence Act having not been complied with by
prosecution as no finding has been arrived at by the designated
court that the materials brought on record were sufficient to
attract the same.
6. The requirements of law for the purpose of issuance of a
proclamation in terms of Section 82 of the Code being only
`reason to believe’ and the requirement for exercise of
jurisdiction by the Court under Section 299 of the Code being
“proved” and, thus, only because an accused had been
absconding the same by itself could not have been a ground
for invoking the jurisdiction under Section 299 of the Code in
absence of any finding that not only the appellant was
absconding but he has intentionally been avoiding arrest.
7. . The purported evidence of the ten witnesses who had been
examined in the first phase of trial having been collected
illegally, the same was not admissible in evidence in the
present case and in that view of the matter the impugned
judgment cannot be sustained.”
7. It was submitted by the learned counsel for the petitioner during his
arguments that petitioner was kept away from defending a false and
frivolous case against him. The learned counsel during his arguments also
submitted that the Investigating Officer of the case was under a legal
obligation to initiate the process under Section 82 of the Code before
proceeding to make a prayer for initiation of proceedings under Section 299
of the Code against the petitioner which has not been done and the learned
Trial Court was satisfied just on the statements of the IO and some ‘tamili
constable’.
8. The words, “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 offences 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
arrest of such person be given in evidence against him on the enquiry 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 any amount of delay, expense or inconvenience which,
under the circumstances of the case, would be unreasonable”. Pre suppose
that a criminal court before initiating the process under Section 299 of the
Code corresponding to Section 335 of the BNSS against any accused is
needed to be fully satisfied regarding proof that said accused is absconding
and there are no immediate prospects of his arrest.
9. In the facts and circumstances of the case, this Court is of the opinion
that matter can be disposed at this threshold stage without notice to the other
side by passing of appropriate orders which are not likely to prejudice the
interest of any party.
10. The matter is accordingly taken up for final disposal and is
accordingly disposed of with the quashment of the order dated 12.12.2022
of the learned Trial Court regarding initiation of proceedings under Section
299 of the Code against the present petitioner-accused.
11. The petitioner-accused is directed to surrender before the learned
Trial Court and the learned Trial Court shall deal with him in accordance
with law. The petitioner is at liberty to seek bail in the case FIR from the
learned Trial Court and in case such prayer is made through a proper
motion, the learned Trial Court shall deal with the same in an expeditious
manner under law.
12. Before parting, it is felt needful to observe that the criminal courts
use to initiate proceedings against the accused persons in terms of the
provisions of Section 299 of the erstwhile repealed Code of Criminal
Procedure, 1973, corresponding to the provisions of Section 335 of the
BNSS on the mere asking of the SHO/IO concerned. In most of the said
cases, the Investigating Officers do not take any pains to proceed in
accordance with the law for effecting the arrest of the said accused during
investigation of the case and for the sake of their convenience prefer to
make requests before the criminal courts for initiation of proceedings under
Section 335 of BNSS. The recording of the prosecution evidence in the
absence of such accused may, in some circumstances, result in serious
repercussions especially when the witnesses recorded in the absence of such
accused are dead or become subsequently incapacitated to come and face
the cross-examination of the accused subsequently brought at the trial. The
criminal courts are required to be mindful of any such situations by fully
satisfying regarding the proof of the fact that such accused have absconded
and there are no immediate prospects of their arrest.
13. Disposed of.
5.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR:
13.08.2025
“Shahid Manzoor”
Whether the order is speaking Yes/No
Whether approved for reporting Yes/No
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