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2011 DIGILAW 2061 (RAJ)

Mohammed Shafik v. State of Rajasthan

2011-09-22

MOHAMMAD RAFIQ

body2011
JUDGMENT (1) THIS criminal misc petition under Section 482 Cr.P.C. has been filed by petitioner -Mohammed Shafik alias Sheikh Salim aggrieved by the order dated 29/7/2009 passed by learned Additional Sessions Judge No.1, Kota. Petitioner to facing trial for offence under Sections 302 and 148 IPC. Challan against him was filed in absentia with the aid of Section 299 Cr.P.C. along with co- accused on 23/5/1997. Co-accused Mahesh, Amin, Dinesh and Gurnam Singh were convicted for offence under Section 302 read with Sections 149,147 and 148 IPC and were sentenced to life imprisonment. However, accused-petitioner was arrested in January 2007. Challan was filed against him in absentia and charge under the aforesaid offence was framed. (2) IT was in the backdrop of the afore noted facts that Public Prosecutor filed an application under Section 299 Cr.P.C. read with Section 33 of the Evidence Act with the prayer that statements of PW3 Man Singh, PW-7 Dr.M.M. Mishra and PW10 Aijaj Hussain, whose statements were recorded during trial of the co-accused in absence of the accused petitioner herein should be read in evidence without their production before the court because they have died. IT is this order, which is impugned in this misc. petition. Shri Surendra Sharma, learned counsel for the petitioner has argued that requirements of Section 299 Cr.P.C. were not fulfilled inasmuch as, when the trial against the co-accused was proceeded ex parte in absence of the petitioner, Section 299 Cr.P.C. provides that if it is proved that there is no immediate prospect of arrest of petitioner, the court may in his absence examine the witness produced by the prosectuion 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 can not 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. Learned counsel argued that unless that satisfaction was arrived at by the learned trial court when trial of the co-accused proceeded, the statement of witnesses recorded in that trial cannot be read against the petitioner. Learned counsel argued that unless that satisfaction was arrived at by the learned trial court when trial of the co-accused proceeded, the statement of witnesses recorded in that trial cannot be read against the petitioner. Learned counsel also referred to Sub-section (2) of Section 299 Cr.P.C. and argued that according to that section, an inquiry is required to be made by the judicial magistrate and examine those witnesses, who was if and without the accused is arrested, such statement can be read against him. That requirement has not been fulfilled. Petitioner would be gravely prejudiced by reason of the fact that he did not get the opportunity to cross-examine those witnesses. Exceptions carved out in Section 33 of the Evidence Act would not applicable to this case. Shri Surendra Sharma, learned counsel for the petitioner argued that the learned trial court has failed to correctly appreciate the judgment of Supreme Court in Nirmal Singh v. State of Haryana AIR 2000 SC 1416 : (2000 Cri LJ 1803). The order passed by the learned trial court is against the canons of principles of natural justice and basic principles of criminal jurisprudence. Learned counsel for the petitioner in support of his arguments placed reliance on the judgments of Supreme Court in Jayendra Vishnu Thakur v. State of Maharashtra and another (2009) 7 SCC 104 : (2009 AIR SCW 3898) and Shashi Gena and others v. Khadal Swain 2004 Cr LR (SC) 297. (3) PER contra, Shri Mahendra Meena, learned Public Prosecutor has argued that provisions of Section 299(2) Cr.P.C. would not be applicable to the facts of the present case where for relevant provisions would be sub-section (1) of Section 299 Cr.P.C. It was argued that once it is established that aforementioned three witnesses namely; PW3 Man Singh, PW-7 Dr.M.M. Mishra and PW10 Aijaj Hussain, have died, it was not possible to produce them in evidence for the purpose of cross-examination. Already, their statements were recorded and they were subjected to cross-examination. The impugned order is therefore legal and correct and does not call for any interference by this court. The petition be therefore dismissed and the interim order whereby the trial court was directed not to pass the final order be vacated. (4) I have given my anxious consideration to the rival submissions of the parties and carefully perused the impugned order. The petition be therefore dismissed and the interim order whereby the trial court was directed not to pass the final order be vacated. (4) I have given my anxious consideration to the rival submissions of the parties and carefully perused the impugned order. In the present case, challan had to be filed in absence of petitioner by recourse to Section 299 Cr.P.C. only against co-accused Mahesh, Amin, Dinesh and Gurnam Singh because the present petitioner could not be arrested despite efforts made by the police. Proceedings under Sections 82 and 83 Cr.P.C. were initiated against him. He was declared proclaimed absconder and standing warrants were issued against him. Challan was filed against other three accused as early as 23/5/ 1977 and the accused-petitioner was arrested after three decades thereof i.e. in January 2007. One of the pre-conditions for invocation of Section 299(1) Cr.P.C. was thus fully satisfied in that, "that an accused person has been absconded and there is no immediate prospect of his arrest". It is on fulfilment of this condition that statement of prosecution witness recorded in his absence are sought to be read against him in evidence when now he is facing trial after his arrest. Another precondition is that statement of such witness can be read in evidence against him without formally producing the witness in evidence before the court only if such witness is (i) dead or (ii) is incapable of giving evidence or (iii) if his presence cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable. The very fact that the petitioner could be arrested after 30 years, the delay is so enormous that if evidence of those witnesses were not recorded in the trial of the other co-accused, delay that it would have caused to conclusion of the trial would indeed have been highly unreasonable. Therefore, I am not inclined to uphold the argument of the learned counsel for the petitioner that judgment of Nirmal Singh supra has not been correctly read and applied by the learned trial court to the facts of the present case. Judgment of Supreme Court in Jayendra Vishnu Thakur supra, which has been relied upon by the learned counsel for the petitioner can hardly be of any assistance to him. Judgment of Supreme Court in Jayendra Vishnu Thakur supra, which has been relied upon by the learned counsel for the petitioner can hardly be of any assistance to him. All that was held in that judgment by the Supreme Court was that provisions of Section 299 of the Code should be strictly construed and interpreted and thus scrupulous compliance therewith should be made. Both the conditions in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of only one of the conditions would not be sufficient. The argument of the petitioner that such satisfaction was not recorded by the learned trial court during trial of the co-accused that before proceeding to record statements of aforesaid witnesses during trial of the co-accused that there was no immediate prospect of arresting petitioner is therefore rejected. (5) ANOTHER Supreme Court judgment that has been relied on by the learned counsel for the petitioner in Shashi Gena (supra) arose out of the case where statement of the eyewitness, who was the solitary eye-witness was recorded under Section 202 Cr.P.C. was not held to be admissible as per the provisions in Section 33 of the Evidence Act for the purpose of his conviction. It was held that statements under Section 202 of the Code were recorded in an enquiry and that accused did not have right, much less opportunity, to cross-examine all the prosecution witnesses, whose statements have been recorded under Section 202 Cr.P.C. therefore, such statement would not be admissible in evidence by virtue of Section 33 of the Evidence Act. (6) SECTION 33 of the Evidence Act carves out an exception for reading statement of witness in subsequent judicial proceedings or at later stage of the same judicial proceedings when the witness is (i) dead or (ii) such witness is incapable of giving evidence or (iii) if his presence cannot be obtained without an amount of delay and expense, which under the circumstances of the case, would be unreasonable. The very language of this provision would suggest that it is in pari materia with SECTION 299(1) of the Cr.P.C. and the pre-requisite conditions for invocation thereof are similar in that the similar judicial proceedings or at later stage of the same judicial proceedings, when a witness is dead, evidence given by him in a judicial proceeding earlier, is on fulfilment of those conditions relevant for the purpose of proving the truth of the fact, which he stated. Proviso to SECTION 33 of the Evidence Act provided that the proceedings between the same parties or their representatives in interest, that the adverse party in the first proceeding, who had the right and opportunity to cross-examine and that the questions in issue were substantially the same in the first as in the second proceeding. Explanation to SECTION 33 provides that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. In the present case, the accused, who originally faced the trial, had an opportunity to cross-examine those witnesses when statement of witnesses namely; PW3 Man Singh was recorded on 1/7/1977, statement of PW-7 Dr. M. M. Mishra was recorded on 13/7/1977 and statement of PW10 Aijaj Hussain was recorded on 19/8/1977. Object of SECTION 33 of the Evidence Act likewise is to make deposition of witnesses admissible on satisfaction of the trial court about compliance with the requirement of SECTION 299(1) Cr.P.C. read with SECTION 33 of the Evidence Act. Adverting now to the argument of the learned counsel for the petitioner that statements of those witnesses could be read in evidence against the petitioner only if an inquiry was made by the Magistrate in terms of Section 299(2) Cr.P.C. That argument proceeds on the fallacy that even in a situation where identity of the accused is known, such inquiry would have to be conducted by the Magistrate as per dictum of the High Court or Sessions Judge. In fact, sub-section (2) of Section 299 Cr.P.C. makes the condition of enquiry applicable on fulfilment of the condition that person or persons, who may have committed offence punishable for death or imprisonment for life, were unknown and only in that event, the Magistrate could have ordered to examine any witness in such an inquiry, who can give evidence concerning the offence against any person, who is subsequently accused of offence, if the deponent is incapable of giving evidence or is beyond the limits of India. In the present case, there was no such situation. Petitioner was very much known and it was not a case where accused were unknown. In fact, proceedings under Sections 82 and 83 Cr.P.C. were also initiated against him and he was declared proclaimed absconder and standing warrant was issued against him and he was eventually arrested. In these circumstances, when those three witnesses have died, their statements can in the trial against the accused- petitioner be safely read in view of Section 299 of Cr.P.C. (7) IN view of above discussion, I do not find any merit in this petition, which is accordingly dismissed. Petition dismissed.