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2006 DIGILAW 733 (CAL)

M. JAWAHARDEEN v. STATE

2006-11-24

KISHORE KUMAR PRASAD

body2006
Before Mr. Justice Kishore Kumar Prasad ( 1 ) HEARD the learned Counsel for the petitioner herein whose anxiety is for expeditious disposal of his client's case from that of other co-accused persons. It appears from the record that the present petitioner appeared before the Court of learned Magistrate on 06. 10. 2000 in connection with this case; that he was released on bail on the aforesaid date; that thereafter the learned Magistrate fixed the matter on different dates and ultimately fixed 18. 01. 2007 for appearance of the petitioner including other co-accused person on bail and for furnishing execution report of warrant of arrest in respect of four absconder co-accused persons. It is also evident that in order to get the segregation of his trial with that of other co-accused persons, the petitioner herein filed an application before the Court of learned Magistrate on 07. 04. 2006 but for reasons best known to the learned Magistrate the said application was not heard on 17. 07. 2006 and 25. 07. 2006, although learned Magistrate fixed the aforesaid dates for hearing the application dated 07. 04. 2006. ( 2 ) MR. Salim Mohammed, Additional Public Prosecutor appearing for the respondent-State with reference to the lower Court records in his usual fairness urged that on the face of the very old nature of the case including the allegation levelled against the petitioner and other co-accused persons, specific direction should be given to the learned Magistrate for expeditious disposal of the case in accordance with law. ( 3 ) THE grievance of the petitioner seems to be that there has hardly been any progress worthmentioning despite issuing coercive process against the absconder-accused persons. ( 4 ) IT may be pointed out that the provision of Section 299 of Cr. P. C. is an exception to the general rule that the evidence has to be taken in the absence of the accused. Before the provision of Section 299 Cr. P. C. can be availed of the conditions prescribed must be strictly complied with. There remains no doubt that in order to give jurisdiction to record evidence under Section 299 of the Cr. P. C. , it must be proved by evidence that the accused has absconded and there is no immediate prospect of arresting him. P. C. can be availed of the conditions prescribed must be strictly complied with. There remains no doubt that in order to give jurisdiction to record evidence under Section 299 of the Cr. P. C. , it must be proved by evidence that the accused has absconded and there is no immediate prospect of arresting him. That apart, splitting of trial against some of the accused and simultaneously continue with the proceedings of procuring the presence of remaining accused is neither legally permissible nor congenial to the trial as it has to be intermittently subjected to fits and starts and the possibility of de novo trial, if even one of the accused appears at the fag end cannot be ruled out. It is not understandable as to how the evidence of the complainant will be recorded simultaneously with the proceedings for procuring the presence of the remaining accused persons. If at one stage or the other one or two of them appear, it will be incumbent upon the trial Court, to State the substance of accusation in terms of Section 251 Cr. P. C. and again recall the witnesses who have already been examined, for fresh examination in their presence. No witness can be allowed to be examined in the absence of accused until and unless he was declared Proclaimed Offender. If the trial Court is chary of expeditious trial, it could have expedited the proceedings by issuing coercive process and declare those persons whose presence is difficult to procure as proclaimed Offender as per provisions of Sections 82 and 83 of Cr. P. C. ( 5 ) IN view of the foregoing reasons, the present application is disposed of with a direction upon the learned Magistrate to expedite the proceedings by issuing coercive process against the absconder accused persons as per provisions of Sections 82 and 83 of Cr. P. C. within a period of four months from the date of communication of this order and after expiry of the aforesaid period the learned Magistrate must conclude the trial in accordance with law within a period of six months. If necessary and as required, the learned Magistrate must fix up consecutive dates for evidence. ( 6 ) THE present application stands, accordingly, disposed of and disposal of this application also means the disposal of the application dated 07. 04. If necessary and as required, the learned Magistrate must fix up consecutive dates for evidence. ( 6 ) THE present application stands, accordingly, disposed of and disposal of this application also means the disposal of the application dated 07. 04. 2006 filed on behalf of the petitioner herein before the Court of learned Magistrate with the direction made above. ( 7 ) RECORDS received from the learned Court below along with a copy of this judgment be sent back so as to reach the Court of learned Magistrate on or before 27. 11. 2006.