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2010 DIGILAW 14 (SIK)

Gulshan Rai Nagpal v. State of Sikkim

2010-10-14

P.D.DINAKARAN, S.P.WANGDI

body2010
JUDGMENT WANGDI, J. (1) This writ petition is directed against the Order of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok dated 16-8-2010 in S.T. Case No. 2 of 2005, by which an application under Section 300 of the Code of Criminal Procedure, 1973, (in short "Cr. P.C") read with Article 20(2) of the Constitution of India filed by the petitioner was dismissed. (2) In the writ petition, it has been stated that in the Court of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, a case under Sections 468/471/420/ 34 of the INdian Penal Code (in short "IPC") had been registered against the petitioner and one Dawa Karma Lepcha and a joint trial conducted against them. It is stated that during the trial, the accused No. 2, Dawa Karma Lepcha, was not present and the petitioner alone had appeared before the trial Court but, subsequently even the petitioner could not appear under circumstances said to be compelling against him. That later, accused No. 2, Dawa Karma Lepcha, did appear and the trial was completed allegedly against the said Dawa Karma Lepcha alone. When the trial was completed and the judgment pronounched on 10-4-2003 by which the co-accused Dawa Karma Lepcha was convicted and sentenced under Sections 420/468/471/ 34, IPC, the trial Court erroneously recorded conviction against the petitioner also which as per the petitioner was an erroneous exercise of jurisdiction and amounted to acting in flagrant disregard of the laws and the rules of procedure and violation of the principles of natural justice resulting in failure of justice. It is averred that the petitioner could not have been convicted as the entire trial was conducted only in respect of the co-accused Dawa Karma Lepcha and not against him. It is further stated that the judgment dated 10-4-2003 passed by the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, convicting the co-accused Dawa Karma Lepcha and the sentence passed against him had been set aside by the learned Sessions Judge, East and North Sikkim at Gangtok in Criminal Appeal No. 16 of 2003, filed by the said accused, Dawa Karma Lepcha. Under such circumstances, even assuming that the trial of Criminal Case No. 147 of 1998 before the learned Chief Judicial Magistrate is considered to be a joint trial and the judgment culminating therefrom a combined judgment against both the petitioner and the co-accused Dawa Karma Lepcha, the petitioner would also be entitled to the benefit of the decision of the learned Appellate Court and would be deemed to have been acquitted of the charges as in the case of the co-accused Dawa Karma Lepcha. It has further alleged in the petition that the conclusion of the trial Court that the petitioner had committed the offences is bereft of any reasons and, therefore, the judgment was not a judgment in the eyes of law. It is stated that when the petitioner appeared before the trial Court and noticed the erroneous judgment dated 10-4-2003 convicting him of offences and, of the fact that the said judgment had been set aside in appeal, the petitioner filed an application under Secti6n 300, Cr. P.C. on the ground that his trial in the case would amount to a second trial. However, the learned Chief Judicial Magistrate vide its Order dated 16-8-2010 dismissed the petition on an erroneous finding that the impugned judgment dated 10-4-2003 was a combined judgment of both the co-accused and the petitioner and that the charges against them were quite distinct. The petitioner further states that the Order dated 16- 8-2010 dismissing the application under Section 300, Cr. P.C. and fixing the date for hearing on sentence was an erroneous exercise of jurisdiction in flagrant disregard of the laws and the rules of procedure and violative of principle of natural justice resulting in failure of justice and accordingly, prayed for the following reliefs :- "(A) This Hon'ble Court may be pleased to admit this petition, call for the records and issue Rule calling upon the respondents to show cause as to why a writ of Certiorari and appropriate writ/order or direction may not be issued to quash impugned judgment dated 10-4-2003 earlier pronounced by Ld. Meenakshi M. Rai, the then Chief Judicial Magistrate (East) at Gangtok in Crl. Misc. Case No. 147/1998, and again pronounced on 16-8-2010 in Vig Case No. 4 of 2008 entitled as State of Sikkim v. Gulshan Rai Nagpal and another and all proceedings of the case with the impugned order dated 16- 8-2010 passed by Ld. Meenakshi M. Rai, the then Chief Judicial Magistrate (East) at Gangtok in Crl. Misc. Case No. 147/1998, and again pronounced on 16-8-2010 in Vig Case No. 4 of 2008 entitled as State of Sikkim v. Gulshan Rai Nagpal and another and all proceedings of the case with the impugned order dated 16- 8-2010 passed by Ld. Chief Judicial Magistrate (East) in Cr. Misc. Case No. 4 of 2008 and (B) Issuing any other appropriate order writ or direction or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case." (3) Since the questions involved in the case was found to be quite short that could be decided on the basis of the facts available on the records before us, we have taken up this matter for disposal on the very first date at the stage of motion. (4) The petitioner argued that the judgment in Criminal Case No. 147 of 1998 pertained only to the accused No. 2, i.e. Dawa Karma Lepcha, as it was rendered on the basis of the trial against him only, and that the learned Chief Judicial Magistrate had committed a grave error in convicting him instead. The petitioner took us through the judgment in Criminal Case No. 147 of 1998 to show that he was not present during the trial and that the entire trial was directed against the accused No. 2, drawing our attention specifically to paragraph 74 of the judgment to demonstrate that the trial Court had mis-directed itself in finding him as having committed the offences and convicting him thereby. It was submitted that the purpose of drawing this Court's attention to the judgment dated 10- 4-2003 in Criminal Case No. 147 of 1998 was not with the object to question the merit of the judgment but only to show the non- application of mind of the Court and the mechanical manner in which the judgment was rendered. It was further submitted that notwithstanding the above, the said judgment having been set aside in Criminal Appeal No. 16 of 2003 by judgment dated 20-10-2003 of the learned Sessions Judge, East and North Sikkim at Gangtok, acquitting the accused No. 2, the petitioner would also be entitled to the benefit of the decision and be acquitted of the charges. It was further submitted that notwithstanding the above, the said judgment having been set aside in Criminal Appeal No. 16 of 2003 by judgment dated 20-10-2003 of the learned Sessions Judge, East and North Sikkim at Gangtok, acquitting the accused No. 2, the petitioner would also be entitled to the benefit of the decision and be acquitted of the charges. That the Order of the learned Chief Judicial Magistrate dated 16- 8-2010 was erroneous in as much as it wrongly held that the application under Section 300, Cr. P.C. filed by the petitioner was not maintainable as Criminal Case No. 147 of 1998 still remained in force against the petitioner who was required to face further trial for the purpose of hearing on sentence. The petitioner submitted that this Court in exercise of its power under Article 226 read with Article 227 of the Constitution had the jurisdiction to issue a writ of certiorari to quash the proceedings before the learned Chief Judicial Magistrate, it being without any jurisdiction. In support of his contention the petitioner placed before us the case of Dandu Lakshmi Reddy v. State of Andhra Pradesh, AIR 1999 SC 3255 : (1999 Cri LJ 4287) in paragraph 25 of which the relevant portion is reproduced below :- "25...............On the evaluation of a case. if this Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to his co-accused also though he has not challenged the order by means of an appeal petition to this Court, (vide Raja Ram v. State of M. P. (1994 (2) SCC 568)." (Emphasis supplied) (5) Next, reference was made to the case of Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044 (1) more particularly paragraphs 21, 34 and 38 which we may reproduce below :- "21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if not failure of justice has been occasioned. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if not failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior Court or Tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior Court has committed any of the preceding errors occasioning failure of justice. 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdictioin of the High Court to issue a writ or certiorari to a Civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled. 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :- (1) Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act no. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act no. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (1) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied; (1) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A petent error is an error which is self- evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to; be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to; be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the prameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case." (6) On the other hand, Mr. J. B. Pradhan, learned Public Prosecutor submitted that the trial of Criminal Case No. 147 of 1998 was a joint trial of the two accused persons who were charged with the offences having been committed with common intentions. It was submitted that the charge sheet had been filed against both the accused persons with the accused No. 2, Dawa Karma Lepcha, declared as absconder. During the course of the trial, the petitioner had appeared in Court and was present throughout the trial and contested the case culminating in his statement being recorded under Section 313, Cr. P.C. and filing of his memorandum of arguments after which he chose to abscond and was declared an absconder by following the necessary procedure prescribed under the law for the purpose. Later when the accused No. 2 reappeared and surrendered before the trial Court, a fresh trial was conducted against him resulting in the judgment dated 10-4-2003 convicting both the accused persons. However, since only the accused No. 2 was present, he was heard on sentence as required under Section 235 of the Cr. P.C. and was accordingly sentenced which, of course, was set aside by the appellate Court in Criminal Appeal No. 16 of 2003 as pointed out by the petitioner. That the petitioner having later appeared and surrendered before the Court of the learned Chief Judicial Magistrate, trial against him would proceed from the stage where it had stopped at the time of his abconding. It is submitted by the learned Public Prosecutor that since the petitioner had submitted his memorandum of arguments and had absconded before pronouncement of the judgment, it is to be reasonably presumed that the trial Court had duly considered all contentions raised by him in the written arguments while rendering the judgment. Since Section 235, Cr. P.C. mandates that an opportunity of hearing be provided to a convict before being sentenced, there was no infirmity in the Order of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok dated 16-8-2010 as it was to his benefit. Although, Section 235, Cr. P.C. is clear by itself, Mr. Pradhan preferred to place before us the decision in the case of Anguswamy v. State of Tamil Nadu (1989) 3 SCC 33 in paragraph 3 of which it was been held as follows :- "3. Although, Section 235, Cr. P.C. is clear by itself, Mr. Pradhan preferred to place before us the decision in the case of Anguswamy v. State of Tamil Nadu (1989) 3 SCC 33 in paragraph 3 of which it was been held as follows :- "3. The requirement of sub-section (2) of Section 235 of the Code of Criminal Procedure is mandatory and confers a right on the offender to be heard on the question of sentence. The scope of the said provision has been considered in Allauddin Mian, Sharif Mian v. State of Bihar (1989) 3 SCC 5 : (1989 Cri LJ 1466) wherein it is pointed out that it satisfies a dual purpose, namely, (i) the rule of natural justice inasmuch as it gives the offender an opportunity of being heard on the question of sentence and (ii) it seeks to assist the Court in determining the appropriate sentence. In Allaudin Mian qase we have emphasised the need to strictly follow the mandate of Section 235(2) of the Cr. P.C. However, the opportunity, statutorily afforded by that sub-section to an offender does not absolve the Court of its obligation to apply its judicial mind on the question of sentence but casts additional obligations (i) to give the offender an opportunity to make a representation on the question of sentence and (ii) to take into consideration such representation while determining the appropriate sentence to be awarded to the offender. Since we have in Allauddin Mian case already pointed out in detail the obligations cast of the sentencing Judge, we need not dilate and elaborate on the various factors which must exercise the judicial mind on the choice of sentence." It was further submitted that the petitioner having not appealed against the judgment dated 10-4-2003, it was not open for him now to question the validity thereof. (7) The questions for determination before us are as to – (i) whether the trial in Criminal Case No. 147 of 1998 was a joint trial of the petitioner and the co-accused, Dawa Karma Lepcha or of the latter alone? (ii) Whether the judgment dated 10-4- 2003 in the said Criminal Case is a combined judgment of both the petitioner and the said co-accused ? (ii) Whether the judgment dated 10-4- 2003 in the said Criminal Case is a combined judgment of both the petitioner and the said co-accused ? and (iii) Whether the impugned order of the learned Chief Judicial Magistrate, East and North at Gangtok in Vigilance Case No. 4 of 2008 (renumbered Criminal Case No. 147 of 1998) had been passed correctly. (8) (I) whether the trial In Criminal Case No. 147 of 1998 was a joint trial of the Petitioner and the co-accused, Dawa Karma Lepcha or of the latter alone ? (II) Whether the judgment dated 10-4- 2003 In the said Criminal Case is a combined judgment of both the Petitioner and the said co-accused ? a) As these two questions are Interrelated, they are taken up together. We have found from the records that the co-accused, Dawa Karma Lepcha, had absconded during the stage of Investigation and charge-sheet filed against both the Petitioner and co-accused, Dawa Karma Lepcha, with the latter being declared an absconder. The Petitioner had appeared In Court during the entire course of the trial and conducted the case In person and also submitted his memorandum of arguments but failed to appear thereafter resulting In him also being declared an absconder. Later, when the accused No. 2 had appeared and surrendered before the trial Court, a fresh trial was held against him resulting In him being convicted and sentenced. On going through the judgment dated 10-4-2003 of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, we find that It is replete with detailed discussions of the evidence In respect of both the accused persons and, therefore, the plea of the Petitioner that the judgment is only against the co-accused Dawa Karma Lepcha is quite fallacious. Paragraph 74 of the judgment pertains to a finding against the Petitioner only In respect of offence under Sections 420/34, IPC while the rest of the paragraphs deal with other offences under Sections 468 and 471, IPC. Apart from this, we also find the following categorical finding In the later part of the judgment :- ".................The accused persons were aware that not only was the document exbt. Apart from this, we also find the following categorical finding In the later part of the judgment :- ".................The accused persons were aware that not only was the document exbt. Pll Invalid by virtue of It not being registered as per the law of the land and not seeking Government permission for adoption, the execution of the document was fraudulent and effected the Interest of the Schedule Tribe In general........" b) In the above premises, there can be no manner of doubt that judgment was rendered by the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, In respect of both the accused persons and, therefore, the submission of the Petitioner that It is only In respect of co-accused Dawa Karma Lepcha is not acceptable and accordingly, stand rejected. (III) Whether the Impugned order of the learned Chief Judicial Magistrate, East and North at Gangtok In Vigilance Case No. 4 of 2008 (renumbered Criminal Case No. 147 of 1998) had been passed correctly. a) The answer to the above question, In our vIew, appear to be quite simple. The Petitioner filed the application under Section 300, Cr. P.C. on the ground that the judgment dated 10-4-2003 In Criminal Case No. 147 of 1998 had been set aside In an appeal filed by the co-accused Dawa Karma Lepcha acquitting him of the charges and, since the Petitioner was also charged with the same offences along with the co-accused, continuation of the trial against him was prohibited In pursuance of Section 300, Cr. P.C. and, therefore, entitled to be acquitted. We may reproduce below Section 300(1) Cr. P.C. the rest being not relevant :- "300. P.C. and, therefore, entitled to be acquitted. We may reproduce below Section 300(1) Cr. P.C. the rest being not relevant :- "300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains In force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof." b) As is quite apparent from a plain reading of Section 300(1) the prohIbition of a second trial is only with respect to the very same person who had been earlier convicted or acquitted and would not bring within Its ambit the case of a co-accused. Moreover, In the present case, It was the accused No. 2 alone who had preferred an appeal and not the Petitioner. We also find that the conduct of the Petitioner is also does not appear to be above board as he chose to abscond when judgment In the case was on the verge of being pronounced and admittedly appeared after more than 7 years of his absconding. As held by a Division Bench of the Allahabad High Court In the case of Tahsildar Singh v. State, AIR 1958 All 214, "the law definitely looks with disfavour on absconding. An accused is expected by law to appear the moment he is called upon by the Court to answer a charge levelled against him." c) We find that the opinion of the Courts on the question as to whether acquitted of co-accused prohibits trial of absconding accused person on their being apprehended are quite conflicting. We have noticed differing applications of the principle depending on the peculiar facts and circumstance of each case and no general rule appears to have been laid down. The reason for the plea of autrefois acquit being raised by the Petitioner In the present case, is that an accused person should not, In respect of any offence, be put on jeopardy of prosecution more than once. The reason for the plea of autrefois acquit being raised by the Petitioner In the present case, is that an accused person should not, In respect of any offence, be put on jeopardy of prosecution more than once. For the principle of autrefois convict to have any bearing, there must be a conviction In respect of the same offence. It would be a patent violation of the principle and a contravention of the terms of Section 300, Cr. RC. If the accused should ask for relief on that principle when the offences are distinct altogether. In the present case, we no doubt find that the accused persons have been charged with the same offences but, from the materials on record we find that those offences relate to the distinct acts of the accused persons thereby making them Individually liable although Section 34 has also been Included as the criminal acts were alleged to have been committed In furtherance of the Intentions of the accused person. It is well- settled that the burden of proving autrefois acquit or autrefois convict is on the accused when such a plea is set up by him. In the present case, we find that the Petitioner has not been successful In discharging this burden. ; d) The decision In the case of Dandu Laksmi Reddy (supra) relied upon by the Petitioner has been rendered In the peculiar circumstances of that case. In that case, the foundation of the prosecution case being two dying declarations P.11 and P. 14, on the basis of which the accused persons had been convicted and sentenced, were found to be unreliable and, therefore, one of such accused persons who had filed the appeal having been acquitted on such finding, the co-accused was also given the benefit of that decision. In the present case, as we have found that the acquittal of the co-accused, Dawa Karma Lepcha, was solely on the ground that the prosecution witnesses had been examined when he was not present In Court. On the other hand, It has been noticed by us that In the case of the Petitioner, he had appeared throughout the trial and availed himself of the benefits provided under the law for his defence. On the other hand, It has been noticed by us that In the case of the Petitioner, he had appeared throughout the trial and availed himself of the benefits provided under the law for his defence. e) The case of Surya Dev Rai (supra) referred to In his support by the Petitioner would also be of no assistance to the Petitioner as the judgment was rendered on the question as to whether the Amendment Act No. 46 of 1999 to Section 115 of the Code of Civil Procedure (In short "CPC") affects In any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. It was In that context that It was held that Interlocutory orders passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC by the said amendment, are nevertheless open to challenge In, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. The law enunciated In that decision is no doubt binding upon this Court but, Its application to the facts and circumstances of the present case is another matter. We have held that the Order dated 16-8-2010 of the learned Chief Judicial Magistrate (East and North) Gangtok does not suffer from any Infirmity and, therefore, Impermissible for us to entertain the present writ petition which, In our view, would result In scuttling the legitimate judicial process. f) There is another aspect which we In our opinion requires consideration. Section 299, Cr. P.C. provides for recording of prosecution evidence where (J.) the accused is absconding and, there is no Immediate prospect of arresting him and (2) when the offender of an offence punishable with death or Imprisonment for life is unknown. The object is to use the evidence against him In the circumstances stated In the section, If and when the offender is arrested and brought to trial. It is an exception to the general rule prescribed under Section 273, Cr. P.C. and Section 33 of the Evidence Act, 1872, that evidence has to be taken In the presence of the accused, as he has by his own conduct chosen to be absent. It is also well settled that In a case where evidence is recorded In the absence of an accused under Section 299, Cr. P.C. and Section 33 of the Evidence Act, 1872, that evidence has to be taken In the presence of the accused, as he has by his own conduct chosen to be absent. It is also well settled that In a case where evidence is recorded In the absence of an accused under Section 299, Cr. P.C. the accused by his conduct denies himself the opportunity of challenging the evidence. In the light of this position of law, which appears to have escaped the notice of the learned Sessions Judge, East and North Sikkim, we express our grave doubt as to the soundness of his judgment dated 20-10-2003 In Criminal Appeal No. 16 of 2003 setting aside the judgment of the trial Court In Criminal Case No. 147 of 1998. g) In any case, as we find that the judgment was set aside solely on the ground that the trial Court had relied upon such evidence that had been recorded In the absence of the co-accused Dawa Karma Lepcha. No doubt, this aspect is not a matter which is In lis before us but, since the Petitioner seeks to take shelter under the judgment of the Appellate Court, we have deemed It appropriate make the above observations only to Indicate as to the grounds on which the appeal had been allowed. On the other hand, we have found that the Petitioner had fully participated In the trial and availed himself of all the opportunities for cross-examining the prosecution witnesses and had submitted his written arguments In a trial In which the accused No. 2, Dawa Karma Lepcha, had been absent being a declared absconder. From the prayer In the writ petition extracted above, the Petitioner also seeks to quash the judgment dated 10-4-2003 passed by the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok In Criminal Case No. 147 of 1998. As observed earlier, It would not be permissible for this Court to consider the prayer for such relief at this stage being premature and, may prejudice the Petitioner If we embark upon a finding this. (9) In the result, the writ petition is dismissed making it clear that observations and findings contained in this order shall not be construed as our opinion on the merits of the judgment being sought to be quashed. No order as to costs. Petition dismissed.