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2013 DIGILAW 494 (PAT)

Gul Charan Bind v. State of Bihar

2013-04-15

AMARESH KUMAR LAL, V.N.SINHA

body2013
ORDER (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Perused the letter No. 56 dated 1.3.2013 and 131 dated 14.03.2013 received from Adhoc Additional Sessions Judge-I, Banka and Chief Judicial Magistrate, Banka respectively in the light of the orders dated 29.01.2013 and 21.02.2013. 2. It appears, Shambhuganj P.S. Case No. 36/08 dated 6.4.2008 for the offence under Sections 436/324, 302/34 and 307/34 was lodged against the present appellant, Dildar Bind and five others duly named in the First Information Report. Initially charge sheet was submitted against the present appellant alone, who was tried in Sessions Case No. 927 of 2008 and convicted under judgment dated 4.12.2010 on all the three counts. Having heard the convict on the point of sentence under order dated 8.12.2010 he was sentenced to undergo rigorous imprisonment for life with further direction to pay fine of Rs. 25,000/- in default to further undergo rigorous imprisonment for three years. 3. This appeal has been filed against the aforesaid judgment dated 4.12.2010 and order of sentence dated 8.12.2010. Before the filing of the appeal on 28.1.2011, Dildar Bind was arrested on 03.01.2011 and supplementary charge sheet was submitted against the said Dildar Bind on 04.02.2011. In the supplementary charge sheet, five absconders have also been sent up for trial. In the light of the supplementary charge sheet dated 4.2.2011 cognizance shall be deemed to have been taken not only against Dildar Bind, but also against five absconding accused. The case of Dildar Bind and five absconding accused was committed to the court of sessions under order dated 15.02.2011 vide Sessions Trail No. 157 of 2011 and is pending before the Adhoc Additional Sessions Judge-II, Banka vide Sessions Trial No. 157 of 2011. 4. Chapter XXIII of the Cr.P.C. provides for mode of taking and recording evidence during enquiry and trial. Section 273 Cr.P.C. mandates that all evidence taken in course of the trial or other proceeding shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his Advocate. Section 299 Cr.P.C. empowers the trial court to record evidence in absence of accused, provided it is proved that an accused person has absconded and there is no immediate prospect of his arrest. Section 299 Cr.P.C. empowers the trial court to record evidence in absence of accused, provided it is proved that an accused person has absconded and there is no immediate prospect of his arrest. The deposition recorded in the absence of the absconder, after the arrest of the absconder be taken in evidence against the absconder in the trial provided the witness whose evidence has been recorded in the absence of the absconder is dead or incapable of giving evidence or his attendance cannot be secured without an amount of delay, expense or inconvenience, which under the circumstances of the case is unreasonable. The two conditions precedent for recording of the evidence in absence of the accused under Section 299 Cr.P.C. are : 1. That an accused person has absconded and 2. That there is no immediate prospect of his arrest Application of Section 299 Cr.P.C. to a particular enquiry or trial is required to be considered in the light of the right of an accused to cross-examine a witness. Section 137 of the Evidence Act provides for examination in chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of-course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has the right to be informed there about. If an exception is to be carved out the statute must say so expressly or the same must be capable of being inferred by necessary implication. Section 299 Cr.P.C. being an exception to the general rule provided in Section 273 Cr.P.C. that all evidence taken in course of the trial shall be taken in the presence of the accused with opportunity to the accused to cross-examine the witness, must receive strict interpretation and thus scrupulous compliance thereof is imperative in character. It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same terms has been used. It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same terms has been used. Under Section 3 of the Evidence Act like any other fact the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by statute. Existence of evidence is not enough but application of mind by the court on the evidence available as also the analysis of the materials and appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character. 5. Before proceeding under Section 299 Cr.P.C., it is incumbent upon the court concerned to record a finding that the accused absconding is a proclaimed offender under Section 82 of the Cr.P.C. It goes without saying that before recording the finding that accused is a proclaimed offender the formalities required under Section 82 of the Cr.P.C. shall not only be observed but also noted in the order sheet giving reference of the contemporaneous record so as to establish the existence of the jurisdictional facts. It also goes without saying that both the conditions contained in the first part of Section 299 Cr.P.C. must be read conjunctively and not disconjunctively. Satisfaction of one of the condition precedent should not be sufficient for proceeding under Section 299 Cr.P.C. It is obligatory on the part of the trial court to arrive at a finding on the basis of the material brought on record by bringing cogent evidence that the jurisdictional facts exist so as to enable the court to pass appropriate order for recording evidence in absence of accused. From the language of Section 299 Cr.P.C. it is clear that the court which records evidence in absence of the accused must first of all record an order that in its opinion it has been proved on the basis of the materials on record that the accused has absconded and there is no immediate prospect of his arrest. The question also arises as to what constitutes absconding. The question also arises as to what constitutes absconding. The word ‘absconder’ is not defined in the Code of Criminal Procedure, which occurs in Section 87 Cr.P.C. and Section 172 I.P.C. From the context and object of the aforesaid provisions an absconder may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence, it is not enough for proceeding under Section 299 Cr.P.C., if it is shown that it was not possible to trace the absconder soon after the occurrence. It has also to be asserted that absconder was available at or about the time of the commission of the alleged offence and ceases to be available after the commission of the offence before he can be proclaimed as an absconder. Similarly, it is to be asserted that there is no immediate prospect of arresting the accused. Material from the record is required to be ascertained and included in the order by which direction is made to record the evidence behind the absconding accused. 6. The term ‘proved’ having been used in the Section providing for an exception to the general rule is required to be strictly construed. It is not an ipse dixit of the court that would be sufficient for attracting an extraordinary provision. The court is required to apply its mind to arrive at a definite finding on the basis of the materials on record in absence thereof the order for proceeding to record evidence behind the accused may be held to be arbitrary and without jurisdiction. The expression ‘if it is proved’ used in Section 299 Cr.P.C. must mean if it is proved according to evidence admissible under the Evidence Act. With reference to material on record the court should record its finding that the accused is absconding and there is no immediate prospect of his arrest. After recording the aforesaid two findings the court should proceed to record the evidence of witnesses behind the absconding accused. After arrest of the absconding accused the evidence recorded behind his back may be used under Section 33 of the Evidence Act against the absconding accused, provided the court trying the absconding accused is satisfied from the materials available on record that the witness 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 would be unreasonable. 7. In the light of our observations above, Adhoc Additional Sessions Judge-II, Banka should first examine the records of Sessions Trial No. 157/2011 and satisfy itself about the materials available on its record as to whether the materials are enough to declare the five absconding accused as proclaimed offender. In the event, such material is not enough to declare the five absconders as offender then to take appropriate steps under Section 82 of the Cr.P.C. to first declare the five absconder accused as proclaimed offender and thereafter further record finding on the basis of the materials available on the record that there is no immediate prospect of the absconding accused being arrested in near future and then proceed to record evidence against the appearing accused Dildar Bind and five absconders in accordance with law. As and when the five absconders are taken in custody the evidence recorded behind their back be used against them, provided the trial court is satisfied on the basis of the material available on record that the witnesses who were examined behind the back of the absconding accused are either dead or incapable of giving evidence or cannot be found or their presence cannot be procured without an amount of delay, expense or inconvenience which would be unreasonable. 8. To ensure proper application of Section 299 Cr.P.C. in appropriate cases, it is desirable that copy of our order is circulated in the different judgeship of the State with a request to the District Judge to get the order circulated amongst the Trial Judges functioning in the judgeship.