Criminal Application No.4151 of 2009

6th January, 2010

Petitioner Counsel: Mr. R. R. MANTRI
Respondent Counsel: Mr. N. R. SHAIKH

JUDGMENT

JUDGMENT :- By the present application u/s.482 and 483 of Cr.P.C., the applicant/original complainant in CR No.72/2003, registered in Nandurbar Police Station has approached this Court to challenge the legality and validity of the order passed below Exh.38, passed by the Additional Sessions Judge, Nandurbar in Sessions Case No.43/2003 by which the application moved by the Special Public Prosecutor, who was appointed in the said sessions case, has requested the Court to take requisite steps under Chapter (vi) of Cr.P.C. and u/s.70, 82 and 83 of Cr.P.C. before recording the evidence against 3 accused persons, who were shown as wanted, but no steps were taken against them before recording the evidence u/s. 299 of Cr.P.C.

2. Rule.

3. Rule made returnable forthwith. By consent of the parties, this application is finally heard at the stage of admission itself.

4. Such of the fact which are necessary for the just decision in this application can be summarized as follows. On 01/06/2003, an offence was registered in Nandurbar City Police Station vide CR No.72/2003 for the alleged offence u/s. 302, 323, 504, 506 r/w. 34 of IPC on the complaint of one Anil Lodha about the murder of his brother Parasmal Lodha. This complaint was lodged against 4 persons by name Ratansing Rathod, Gajendrasing , Madhavsing and Pepsi @ Pushpendrasing. In connection with the said offence, on 02/09/2003, at about 7.30 p.m., Ratansing Rathod came to be arrested and was in custody till 31/10/2003, till the charge-sheet was filed in the Court of J.M.F.C. Nandurbar, who later on committed the trial by passing requisite committal order to the Court of Sessions and then the case was numbered as Sessions Case No.43/2003. The accused Gajendrasing, Madhavsing and Pushpendrasing were not arrested in connection with the said offence, hence they were shown as wanted at the time of filing of charge sheet u/s.173 of Cr.P.C. as well as at the time of passing of committal order in the said case and the trial was committed to the Court of Sessions against these accused.

5. It further appears that after the committal order was passed, on 31/10/2003 accused Ratansing was released on bail. Now the Sessions case is on the board for final hearing. In this trial, Special Public Prosecutor was appointed at the instance/at the request of original complainant Anilkumar Lodha. It further appears that during the pendancy of the case before the Trial Court, as well as before the Sessions Court, before passing the committal order, as well as after passing the committal order, till the charge was framed, no steps appeared to have been taken to secure the presence of 3 accused, who were shown as wanted in the charge sheet by name Gajendrasing, Madhavsing, Pushpendrasing. As no steps as required to be taken under Chapter (vi) of the Cr.P.C. by issuing warrant of arrest or by issuing the proclamation of the person absconding u/s.82 of Cr.P.C. or issued warrant of attachment of property of the person who was absconding u/s. 83 of the Cr.P.C., hence an application was moved by the Special Public Prosecutor at the instance of the complainant on 05/08/2009 praying to take the requisite steps u/s.82 and 83 of Cr.P.C. before these wanted accused are declared or shown as absconded accused and to record the evidence in their absence as required u/s. 299 of Cr.P.C. This application is at Exh.38. For the reasoned order recorded on 15/10/2009, the learned Additional Sessions Judge, Nandurbar rejected this application on the ground that "the incident occurred on 01/06/2003, the accused was arrested on 02/09/2003, the case is more than 6 years old. In case of further delay the prosecution is likely to suffer as the witnesses will not be available. Therefore, there is no reason to postpone the trial against present accused. Even if the prosecution applies the procedure u/s. 82 and 83 of Cr.P.C. can be initiated on proof of absconding, but the trial can not be postponed. Hence order : Application is rejected."

6. Being aggrieved by the said order, the original complainant have moved this Court for order u/s. 482, 483 of Cr.P.C.

7. Before considering the submissions of learned counsel appearing for the applicant/original complainant which is to some extent are also supported by the learned APP appearing for State as this application required to be considered in the light of what is the clear legal position to record the evidence in absence of accused who are declared as absconded accused. In the premise, even though the application is filed by the original complaint in which the State is made as party as it is a academic issue required to be decided as to how the evidence is to be recorded in cases where the wanted accused are shown or not shown to be absconded.

8. For this purpose, it is necessary to consider the text of Section 299 of Cr.P.C. which read as follows:

"Record of evidence in absence of accused : (1) 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 with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence can not be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with dealt or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given, in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."

Now on clear reading of sub clause (1) of Section 299 of Cr.P.C., it is made clear that before recording the evidence in absence of accused, who are proved to be absconded, the Court is required to take the requisite steps which are contemplated under the Cr.P.C. The fact is clear from the record available in the said session trial that even though the 3 accused were shown as wanted accused, neither any steps were taken by the Court of Magistrate before passing the committal order, or no any steps were taken by the Court of Sessions after the committal order is passed and the trial was committed to the Court of Sessions as required under Chapter (vi) of the Cr.P.C. In the premise, in case, the evidence is recorded in absence of accused without following requisite procedure as required under chapter (vi) of the Cr.P.C. , this evidence recorded in absence of absconded accused is in nullity or the evidence will be void-ab-initio and its of no use. In the premise, considering this legal aspect, the learned Additional Sessions Judge have committed an error in rejecting the application at Exh.38 and intend to proceed with the trial without following the requisite procedure under Chapter (vi) of Cr.P.C., as provided u/s.70, 82, and 83 of Cr.P.C..

9. In the premise, the order impugned of rejecting the application at Exh.38 is erroneous and liable to be quashed and set aside. Accordingly, the order passed below Exh.38 in Sessions Case No.43/2003 by The Additional Sessions Judge, Nandurbar is hereby quashed and set aside. The Additional Sessions Judge, Nandurbar is hereby directed to take the requisite steps as prayed for vide application at Exh.38 and then to proceed with the trial and dispose of the trial in accordance with Law.

10. Rule is thus made absolute as indicated above. The application stands disposed of accordingly.

Application allowed.