TMI Blog2009 (5) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 1989. The impleaded respondent herein, the brother of the deceased, filed a complaint petition with regard to the incident. Appellant absconded. A proclamation under Section 82 of the Code was thereafter issued on 9th February, 1993 declaring the appellant as a proclaimed offender. Subsequently, the said proclamation was also published in different newspapers on various dates. In connection with the said occurrence initially 12 persons were charge-sheeted upon completion of investigation on 27th August, 1993, wherein eight persons, including the appellant, were shown to be absconding. Appellant and other accused were also booked under TADA. Indisputably, in connection with a case arising out of FIR Nos. 140- 144 of 1993 the appellant was arrested in Delhi on 23rd July, 1993. By a letter dated 1st September, 1993 the Investigating Officer in the present case informed the Designated Judge, TADA Court at Mumbai in regard to the appellant's arrest in the Delhi case. 4. Appellant was arrested by the Maharashtra Police on 23rd October, 1993 in connection with FIR No. 3/1992 and was produced before the Chief Judicial Magistrate, Thane on 24th October, 1993 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h October, 2006 for exhibiting the depositions of PW-36 and nine other witnesses, who had since expired, which by reason of the impugned order have been allowed. Aggrieved by the said order, the appellant is before us. 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 abscondence 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 Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 465 of the Code would be attracted. 4) Appellant at all the material times being aware of the entire proceeding and having taken part therein from time to time, he cannot at this stage be permitted to turn around and allowed to raise a contention in regard to the applicability or otherwise of an order in the previous case. 5) Charges having been framed against the appellant in terms of an order dated 20th December, 1993 in respect whereof he despite being aware but having not availed the benefit of cross- examining the witnesses in terms of Section 14(5) of TADA at an appropriate stage, is estopped and precluded from questioning the legality or validity of the said order dated 1st January, 1994. 6) Sub-section (5) of Section 14 of TADA does not require proving of foundational facts beyond all reasonable doubts and in the event, the satisfaction arrived at by the Court on the basis of the material evidences on record, the legal requirements must be treated to have been satisfied. 7) Sub-section (5) of Section 14 of TADA imposes a reasonable restriction on the right of the accused and in any event as the constitutionality of the said provision is not in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly provided. Section 299 of the Code expressly provides for the power of the court to record evidence in absence of the accused in the following term: 299. 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 cannot 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 death 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence. We may, however, notice that such a right has not yet been accepted as a fundamental right within the meaning of Article 21 of the Constitution of India by the Indian courts. In absence of such an express provision in our constitution, we have to proceed on a premise that such a right is only a statutory one. The larger question, namely as to whether right to confront a witness by an accused is a fundamental right or not, in our opinion, need not be gone into by us in these proceedings as the appellant does not question the constitutionality of either Section 299 of the Code or Section 14(5) of TADA or Section 33 of the Evidence Act. In the context of our constitutional scheme; fundamental rights are not absolute being su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an accused can be asked to go outside the court room so long he does not undertake to behave in an orderly manner. It was so held in State of Illinois v. William Allen reported in 397 US 337. An accused is, however, always entitled to a fair trial. He is also entitled to a speedy trial but then he cannot interfere with the governmental priority to proceed with the trial which would be defeated by conduct of the accused that prevents it from going forward. In such an event several options are open to courts. What, however, is necessary is to maintain judicial dignity and decorum. The question which arises for consideration is whether the same will take within its umbrage the said principle. We will examine the said question a little later. We will proceed on the premise that for invocation of the provisions of Section 299 of the Code the principle of natural justice is inbuilt in the right of an accused. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination- in-chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against the absconding accused in their absence. It is, therefore, prayed that the order may be passed to record the evidence against the absconding accused Nos. 1 to 8 in their absence. Pune (Vijay Sawant) Date - 1-1-1994 Special P.P. Order ORDER After splitting up the case with regard to the absconding accused as per the directions of the Honourable Supreme Court in its order dated 23rd November, 1993 in petitions for Special Leave to Appeal Nos. 1643-46/93 with SLP (Crl.) No. 1972-73/93, 2230, 1936, 1900-01/93, this Court is proceeded with the present case and has framed the charge against accused Nos. 1 to 12. However, as these twelve accused have been charged along with the absconding accused, as shown in the charge-sheet, the prosecution can adduce evidence relating to the absconding accused so far relevant the charge and the decision of the case. Eight accused persons have been shown as absconding accused. As the absconding accused are not before the Court the question of their identity will also arise and it will be nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be recorded. How despite the fact that the appellant had already been custody of the Delhi Police viz-a-viz the Maharashtra Police, he could be termed to be an absconder and there was no prospect of securing his immediate presence, was required to be considered. Indisputably both the conditions contained in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should be not sufficient. It was thus, obligatory on the part of the learned court to arrive at a finding on the basis of the materials brought on record by bringing a cogent evidence that the jurisdictional facts existed so as to enable the court concerned to pass an appropriate order on the application filed by the Special Public Prosecutor. Section 299 of the New Code corresponds to Section 512 of the Old Code. The applicability of the aforementioned provisions came up for consideration before some of the High Courts. We will notice a few of them. In Rustam v. Emperor AIR 1915 All 411, the Allahabad High Court held as under: It is clear from the language of the section that the Court which records the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent stage. This being the scope of his enquiry while granting permission, the scope of enquiry at the subsequent stage cannot be wider. For this reason any objection to the validity of the permission on a ground other than non-existence of the jurisdictional facts at the time of grant of permission is untenable and beyond the scope of the Controller's power to examine validity of his earlier permission before directing restoration of possession to the landlord under Section 21 of the Act. In Manboth v. Emperor, Nazir Ahmad v. Emperor and Rustam (supra) was followed. We must, however, notice that in Bhagwati v. Emperor AIR 1918 All 60, the Allahabad High Court held: The section nowhere says that the Magistrate must record a finding. We wish to make it quite clear that in our opinion a Magistrate before recording evidence under Section 512 ought to be satisfied that the accused is absconding and that there is no immediate prospect of his arrest, and it is certainly advisable that he should recite in his order that he finds this to be the case. However, in this case we find that the Magistrate had clear evidence that the accused were absconding, and evidence from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible under the Evidence Act. (See also Ghurbin Bind v. Queen Empress 1884 ILR Cal 1097 wherein it has been held that the fact of absconding to be alleged, tried and established).. We may, at this stage, also notice a decision of this Court in Nirmal Singh v. State of Haryana 1999 CriLJ 1836 wherein it was held that Section 299 of the Code is in two parts. In that case the Magistrate, who had recorded the statements under Section 299 of the Code, was examined to indicate that in fact he had recorded the statements. Cross-examination of the said Magistrate was necessary as there was a dispute as to whether there was any material that the persons whose statements had been recorded were died or not. It was in that context this Court opined: The Magistrate who has recorded the statement under Section 299 of the Criminal Procedure Code, has been examined to indicate that in fact he has recorded the statements. He also further contended that the process-server did submit the report that the persons are dead, whereafter the statements recorded under Section 299 Cr PC were tendered in evidence in the course of trial. It is true that the learned Sessions Judge has not pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate under Section 299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW- 48/A to PW-48/E. As has been stated earlier, since the law empowers the court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross- examining the witnesses, it is, therefore, necessary that the preconditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. 17. In this case moreover t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. If he had a right to take part in the trial, the trial court was duty bound to provide for the same. In any event the learned Designated Judge did not rely on the proclamation made under Section 82 of the Code. It is in the aforementioned situation, we may consider as to whether Sub-section (5) of Section 14 of the Act would be attracted. No application has been filed under the aforementioned provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that it was necessary so to do. The condition precedent therefore was `if it thinks fit'. For the said purpose he was to record reasons. Such an order could be passed with a view to continue with the trial. It may be for a day or for a few days. The accused ordinarily and subject to just exceptions must be facing the trial. In other words, the court was required to opine that recording of evidence is urgent or there existed certain and cogent reasons which would enable him to record evidence in absence of an accused or his pleader. Recording of reasons is imperative in character. It is the only safeguard which had been provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court, he even filed several applications in the pending proceedings. The High Court by its order dated 19th December, 1994 directed: The prayer made in this petition is that respondent No. 4, who is required to face trial in a Court in Maharashtra should be transferred to that court. The petitioner forgets that respondent No. 4 is facing a trial in a serious offences in Delhi. It is obvious that unless one trial is over, that other trial cannot take place. Respondent No. 4 cannot be shifted from place to another so that trials can take place simultaneously. The interest of the petitioner, Maharashtra State are well protected by making entries in the challan of respondent No. 4 in jail record as well as in record of court where respondent No. 4 is facing trial in Delhi that has not to be released till any order is made by a competent court in Maharashtra with regard to the case pending in that Court. As soon as the trial at Delhi completes, respondent No. 4 shall be transferred to the jurisdiction of the court at Maharashtra where he is to face the trial. The Delhi Court shall take expeditious steps to complete the trial at an early date. With these observations, we dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could not have been directed to stand trial.. It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him. Undoubtedly in the order dated 30th December, 1993, while framing charges his name had been shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in he trial. He was arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003. We have noticed hereinbefore the respective dates of death of the witnesses concerned. All the witnesses expired prior thereto. The question of his exercising his right to cross-examine the said witnesses would have arisen only after the said date and not prior thereto. It is, in our opinion, incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial. In that view of the matter we are also of the opinion that it was not a case wherein Sub-section (5) of Section 14 of the Act would have been attracted since the order of the TADA Court specifically invoked Section 299 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing stringent in nature, however, must be strictly complied with. It was further held: 52. Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. 53. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. This Court in Kartar Singh v. State of Punjab 1994 CriLJ 3139; JT 1994 ( 2 ) SC 423 ; 1995 (2) SCALE 598a ; (1994 ) 3 SCC 569 ; [1994 ] 2 SCR 375 has held: 278. ...It is the jurisprudence of law that cross- examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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