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ABSCONDING ACCUSED:­ DELAY, REMEDY TO REDUCE THE
PENDENCY and PROCEDURE.
Arvind M Bhandarwar,
Additional C.J.M.,Pune (Maharashtra)
i)
It is a fact that in entire Maharashtra, the most of the space of
criminal balance sheet is occupied by old pending matters, in which
accused are not appearing. It can be seen that in very few cases evidence
against such absconding accused is recorded taking recourse to the
provision of section 299 of the Code of Criminal Procedure (In short
“Cr.P.C.”) In many cases, the matters are kept on dormant list without
recording the evidence u/s. 299 of Cr.P.C. In every case before keeping the
matter on dormant file, procedure under section 82,83 Cr.P.C. and
recording of evidence under section 299 Cr P C is mandatory. One can not
bypass this procedure. There is no shortcut. Following authorities will make the importance of procedure.
a> Delhi High Court
Rohit Kumar @ Raju S/O Late Sh. Om vs State Of Nct Delhi Dt. 5 October, 2007
15. It appears that the learned Addl.Sessions Judge is not aware with the
basics of Code of Criminal Procedure, as it is apparent from record that process
under Sections 82/83 Cr.P.C. was never executed in accordance with law. For
his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced 29. So, the above mentioned orders passed by Shri. R.K.Tewari, Additional
Session Judge goes on to show that he lacks even elementary knowledge about
the Code of Criminal Procedure and also does not know as to in which cases
and in what manner, proclamation under Section 82/83 Cr.P.C. are to be
issued. In spite of the fact that Shir. R.K.Tewari has no basic knowledge of the
criminal law, he has chosen to comment on the order passed by this Court,
which amounts to judicial indiscipline. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary
knowledge of the Code of Criminal Procedure, under these circumstances, it
would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes
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refresher course at Delhi Judicial Academy in criminal law and procedure, at
the earliest and the District and Sessions Judge would see to it that name of
this officer is recommended in the first available such course and this officer
should undergo training in Dehli Judicial Academy, under the supervision of
the Director, Delhi Judicial Academy at least for a period of three months and,
Director, Delhi Judicial Academy, should submit to this Court, performance
report, with regard to this judicial officer. b> ABDUL REHMAN V/S STATE OF RAJASTHAN ,
2007 LawSuit(Raj) 100
Appeal No: 544 of 2007 , Dt. 10 May 2007 [6] It is settled proposition of law that before declaring the accused as
absconder, the Court has to be satisfied that accused had left their permanent
residence or they are avoiding service or there is no chance of arrest in near
future. Learned Magistrate has not proceeded in accordance with the law. He
has further committed illegality that he has consigned the file to the record
without recording the evidence. For this, Section 299, Cr. P. C. is very much
clear in which it is written that when accused is declared absconder, learned
Magistrate has to record the statements of the witnesses produced by the
prosecution so they can be read in evidence in the contingency shown in the
Section itself. Merely on saying by the Prosecutor that they do not want to
produce evidence, learned Magistrate has consigned the file to the record. This
part of the order is also bad in eye of law. It appears that learned Magistrates
are not adhering the procedure laid down in the Code of Criminal Procedure.
Learned Magistrates should be careful in future in such cases when accused are
declared absconder under Section 299, Cr. P. C.”
ii)
It is usual practice of police officers to file a charge­sheet
showing accused as absconding. If more than one accused are involved in a
case, at the time of filing charge­sheet, the police follow the following
shortcut methods. 1) they merely mention the accused is not charge­sheeted and
separate charge­sheet will be filed or,
2) accused is absconding and Court may proceed u/s.299 of Cr.P.C.
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iii) In the first case, where the police mention that accused is not
charge­sheeted, the Court proceed to here the matter and decide the case
against the accused who is charge­sheeted. The Court records the evidence
of all the witnesses and dispose off the matter. If, such recourse is
followed and after some years absconding accused is arrested and the
witnesses are not traced out, such a valuable evidence which was
recorded is of no use and can not be used against the absconding
accused. Even if the present accused was convicted and witnesses are not
available at subsequent stage, it is a sure case of acquittal for the absconded
accused who is charge­sheeted latter on. iv)
In second situation, police collect evidence and shows the
accused as absconding and request to proceed u/s.299 of Cr.P.C. It is
always noticed and the practice followed is that after filing the charge­
sheet, Court takes all the endeavor to issue summons, warrants to secure
the presence of absconding accused. Till the absconding accused is brought
before the Court or in trial is split up, the matter is not taken by the court
against the accused who is present and who is attending the matter. The
trial is delayed for that reason. In order to proceed with the trial, Court has
either to split up the trial or to take steps u/s.82 and 83 of Cr.P.C. to
declare the accused as absconded accused and to record the evidence
against the such absconded accused u/s.299 of Cr.P.C. Thus, it clearly
shows that after filing a charge­sheet, Court proceed to issue BW, NBW,
proceed u/s.82 and 83 to declare the accused absconding accused. The
material fact to note is that the valuable time of Court is wasted to
complete this procedure and ultimately trials are pending since long.
Splitting of the case is not recourse to decide the matter.
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v)
Ill­effect of splitting up the trial:­
It can be seen that in maximum cases the mode of splitting up
the trial is adopted and record the against the present accused. Such a
method is nothing but temporary treatment. Therefore, it is necessary to
note the ill­effect of splitting up of the trial of absconding accused. It is very
nicely discussed in following authority.
2004 CRI. L. J. 1910, "Gagan Thakur v. State of Jharkhand, “The splitting up of cases leave scope for many splittings, depending
upon the number and will of absconders. This is, thus, a misuse of
process of Court manipulated by absconders and can tend to failure of
justice or its miscarriage. To illustrate, I found that in Cr Appeal No.
1431/02, the main case was split up. The informant appeared at trial
and said that he identified two dacoits and took their names (one of the
two was absconder and the one was facing trial) and when the case of
absconding accused was committed and he was put on trial, the same
witness said he had identified none. Such are likely to be the ill­effect of
splitting up.”
“The Karnataka and Orissa judgment do give practical suggestion of
splitting up the cases, though not envisaged in Section 209. This
suggestion does not take into account the ill­ effects of the solution;
therefore, I humbly differ with these decisions. The Apex Court in case of
State of Kerala v. Mathai Verghese, reported in AIR 1987 SC 33, held as
follows :­­
'A Court can make a purposeful interpretation so as to 'effectuate' the
intention of the legislature and not a purposeless one in order to 'defeat'
the intention of the legislators wholly or in part.'
The main concern should be that the statutory object of a particular
section is not defeated and no prejudice is caused to accused. If no
prejudice can be traced, then rigid compliance of a provisions is mere
empty formality and may be ignored.”
vi)
It is true that, in suitable cases court may take recourse of
splitting up of trial, but it should not be the rule but exception. I would
like to suggest that, if following procedure is adopted, it would surely
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helpfully to reduce old pendency and to preserve the evidence of
important witnesses. I have divided it in two parts,
A.
Before filing charge­sheet[ For new filing ]
B.
After filing charge­sheet [ For pending cases ]
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vii) A. Before filing charge­sheet[ For new filing ]
During the investigation and before filing charge­sheet in many cases
some of the accused or all accused are not traced out or remain
absconding. Considering this I have divided it into again two parts.
FIRST SITUATION : In a case there is only one accused or more than one
accused and all are absconding.
SECOND SITUATION: In a case there are more than one accused and
some of them are absconding.
vii) FIRST SITUATION :(Before Filing Of Charge­sheet) In a case there is only one accused or more than one accused and all are
absconding.
What is expected from the Investigating Officer ?
1) I.O. to issue notices, summons against the absconding accused
and try to secure the presence. Collect all the reports and notes about
search taken by him.
2) Despite taking efforts, if the presence of accused is not secured,
during the course of investigation itself I.O. should apply to the Court for
permission to issue BW , NBW. I.O. should take all the endeavor to trace
out and arrest the accused. 3) Despite taking efforts, if the presence of accused is not secured,
collect all the material which shows that despite taking all the efforts,
accused is not traced out. 4) Thereafter, I.O. to apply and take permission from Court for
issuing proclamation under section 82 and further to proceed u/s.83.
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5) I.O. to make all endeavor to arrest and secure the presence of
accused. Publish the proclamation under section 82 of CrPC, complete the
procedure to attach the property of accused, if any, under section 83 of
Cr.P.C.
6) Thus, in cases where only one accused or more than one
accused are involved and all are absconding, I.O. should complete the
above mentioned procedure and thereafter file charge­sheet.
If this procedure is followed, at that stage of investigation
and before filing of charge sheet,valuable time of court would be saved
and after getting satisfied that accused is absconding, court would be
in a position to declare him/them as absconded accused and can
proceed to record the evidence under section 299 of Cr.P.C. If
incriminating evidence came on record, it can be preserved and file can
be kept on dormant list and court can proceed to pass suitable order.
viii) SECOND SITUATION: (Before Filing Of Charge­sheet) In a case there are more than one accused and some of
them are absconding.
1) Complete the investigation of present accused.
2)
During the investigation of present accused, I.O. to issue
notices, summons against the absconding accused and try to secure the
presence. Collect all the reports and notes about search taken by him.
3)
Despite taking efforts, if the presence of accused is not
secured, during the course of investigation itself I.O. should apply to the
Court for permission to issue BW, NBW against absconding accused.. I.O.
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should take all the endeavor to trace out and arrest the accused. 4)
Despite taking efforts, if the presence of absconding accused is
not secured, collect all the material which shows that despite taking all the
efforts, accused is not traced out. 5)
Thereafter, I.O. to apply and take permission from Court for
issuing proclamation under section 82 and further to proceed u/s.83
against absconding accused.
6)
I.O. to make all endeavor to arrest and secure the presence of
absconding accused. Publish the proclamation under section 82 of CrPC,
complete the procedure to attach the property of accused, if any, under
section 83 of Cr.P.C.
7)
Thus, in cases where some of the accused are absconding and
some are present, I.O. should complete the above mentioned procedure
against the absconding accused and complete the investigation against
present accused and to file charge­sheet.
In a case, where it is taking time to complete the procedure
under section 82,83 of Cr.P.C. against such absconding accused and period
for filing charge­sheet against present accused is going to over, I.O. to file
charge­sheet against present accused and complete the procedure to collect
the material to declare the absconding accused as absconded accused. If this procedure is followed against the absconding
accused, at the stage of investigation itself and before filing of charge
sheet, valuable time of court would be saved and after getting satisfied
that accused is absconding, court would be in a position to declare
him/them as absconded accused. Once the absconding accused is/are
declared as absconded accused, court to record regular evidence
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against present accused and to pass order to record evidence under
section 299 of Cr.P.C. against absconded accused. This would help the court to decide the matter of present
accused as soon as possible. If any incriminating evidence came on
record against the absconding accused, judgment can be delivered
about present accused and such evidence can be preserved and file
can be kept on dormant list and court can proceed to pass suitable
order.
This would serve two purposes. 1)
Case against the present accused would not be delayed. 2)
The precious evidence can be preserved and can be used.
[ CBI Vs. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 ]
It is on the point that warrant of arrest can be issued at the
stage of investigation and proclamation can be made with the permission of
Court.
Note ­ In cases were Court proceed to act upon the action taken by
investigation officer with respect to issuance of notices, summons,
warrants proclamation u/s.82, action u/s.83 of the code of Criminal
Procedure, it is always better to take affidavit of concern investigation
officer. 10
ix) B. After filing charge­sheet [ For pending cases ]
In cases after filing of charge­sheet, in many cases some of the accused
or all accused are shown as absconding. Considering this I have divided
it into again two parts.
FIRST SITUATION : In a case where there is only one accused or more
than one accused and all are absconding.
SECOND SITUATION: In a case where there are more than one accused
and some of them are absconding.
x) FIRST SITUATION :( After filing charge­sheet,For pending cases ) In a case where there is only one accused or more than one accused and
all are absconding.
What is expected from Court ?
1)
Issue notices, summons against the absconding accused and try
to secure the presence. Collect all the reports.
2)
Despite taking efforts, if the presence of accused is not
secured, issue BW, NBW. Court should take all the endeavor to issue
warrants , issue letters for service of the same and to trace out and arrest
the accused. 3)
If the presence of accused is not secured, proclamation under
section 82 be issued and further to proceed u/s.83 of Cr.P.C. 4)
Thus, in cases where only one accused or more than one
accused are involved and all are absconding,after following above court has
to declare accused person as absconded accused. Order be passed to that
effect. 11
xi)
If this procedure is followed and after getting satisfied that
accused is absconding, court would be in a position to declare
him/them as absconded accused and can proceed to record the
evidence under section 299 of Cr.P.C. If incriminating evidence came
on record, it can be preserved and file can be kept on dormant list and
court can proceed to pass suitable order.
xii) SECOND SITUATION: (After Filing Of Charge­sheet) In a case where there are more than one accused and some of them are
absconding.
1)
Issue notices, summons against the absconding accused and try
to secure the presence. Collect all the reports.
2)
Despite taking efforts, if the presence of accused is not
secured, issue BW, NBW. Court should take all the endeavor to issue
warrants , issue letters for service of the same and to trace out and arrest
the accused. 3)
If the presence of accused is not secured, proclamation under
section 82 be issued and further to proceed u/s.83 of Cr.P.C. 4)
Thus, in cases where some of the accused are absconding and
some are present, complete the above mentioned procedure against the
absconding accused .
xiii)
If this procedure is followed against the absconding
accused and after getting satisfied that accused is absconding, court
would be in a position to declare him/them as absconded accused.
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Once the absconding accused is/are declared as absconded accused,
court to record regular evidence against present accused and to pass
order to record evidence under section 299 of Cr.P.C. against
absconded accused. This would help the court to decide the matter of present
accused as soon as possible. If any incriminating evidence came on
record against the absconding accused, judgment can be delivered
about present accused and such evidence can be preserved and file
can be kept on dormant list and court can proceed to pass suitable
order.
This would serve two purposes. 1)
Case against the present accused would not be delayed. 2)
The precious evidence can be preserved and can be used.
Summary: If proper procedure is adopted and necessary directions are
issued, pendency can be surely reduced.
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Important Case Laws.
1.
DHARAMPAL S­O SHAKARAPPA CHAWALE V/S VIMAL
ENTERPRISES, PROP AND ORS, 2010 (3) BCR(Cri) 753
“in this case, as mentioned above, the learned Magistrate did not issue such proclamation at all. The record does not carry the original proclamation duly
signed by the learned Magistrate. It is apparent that the proclamation was not
published as per the provisions of Sub­section (2)(i)(a)(b)(c) of Section 82. It
was not publicly read out in the village of the respondent No. 2, neither it was
affixed on his house or in the Court house. The learned Magistrate admittedly
did not issue a statement in writing declaring that the proclamation was duly
published in the manner specified in Clause (1) of Section 82. Unless this
mandatory procedure is followed, the person against whom such proclamation
is issued, had no reason to have knowledge about it. The proclamation ordered
to have been issued in such fashion, has no legal sanctity. Merely giving
publicity to proclamation in a newspaper is not compliance of the procedure
prescribed under Clause (1) of Sub­section 2 of Section 82. No matter whether
it is more effective or otherwise..”
2. ANIL S/O KHUSHALCHAND LODHA V/S STATE OF MAHARASHTRA
Decided on January 06,2010 [2010ALLMR(Cri)808:2010 LawSuit(Bom)
1658,LAWS(BOM)-2010-1-156 ]
“Now on clear reading of sub clause (1) of Section 299 of Cr.P.C, it is made
clear that before recording the evidence in absence of accused, who are proved
to be absconded, the Court is required to take the requisite steps which are
contemplated under the Cr.P.C. The fact is clear from the record available in
the said session trial that even though the 3 accused were shown as wanted
accused, neither any steps were taken by the Court of Magistrate before
passing the committal order, or no any steps were taken by the Court of
Sessions after the committal order is passed and the trial was committed to the
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Court of Sessions as required under Chapter (vi) of the Cr.P.C. In the premise.
in case, the evidence is recorded in absence of accused without following
requisite procedure as required under chapter (vi) of the Cr.P.C. , this evidence
recorded in absence of absconded accused is in nullity or the evidence will be
void ab initio and its of no use.”
3. ABDUL REHMAN V/S STATE OF RAJASTHAN, 2007 LawSuit(Raj) 100
[Date 10 May 2007]
“It is settled proposition of law that before declaring the accused as absconder,
the Court has to be satisfied that accused had left their permanent residence or
they are avoiding service or there is no chance of arrest in near future. Learned
Magistrate has not proceeded in accordance with the law. He has further
committed illegality that he has consigned the file to the record without
recording the evidence. For this, Section 299, Cr. P. C. is very much clear in
which it is written that when accused is declared absconder, learned
Magistrate has to record the statements of the witnesses produced by the
prosecution so they can be read in evidence in the contingency shown in the
Section itself. Merely on saying by the Prosecutor that they do not want to
produce evidence, learned Magistrate has consigned the file to the record. This
part of the order isalso bad in eye of law. It appears that learned Magistrates
are not adhering the procedure laid down in the Code of Criminal Procedure.
Learned Magistrates should be careful in future in such cases when accused are
declared absconder under Section 299, Cr. P. C.”
4. Smt. Urmila Sahu vs State Of Orissa,1998 CriLJ 1372, [Date19
September,1997]
“Petitioner's contention to peruse the evidence in G.R. Case No. 214 of 1989
recorded in the trial against the co­accused i.e. the petitioner's son and to
quash or drop the criminal proceeding against her for absence of clinching
evidence against her, is devoid of merit for the reasons stated hereinafter.
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Section 299 of the Code of Criminal Procedure 1973 (for short 'Cr.P.C.') which
corresponds to Section 512 of the Code of Criminal Procedure, 1898 (for short
'the Old Code') with no material change in the object, prescribes the procedure
for recording of evidence in absence of the accused i.e. absconding accused. In
that connection, not only the statutory provision is absolutely clear and
unambiguous, but also it has been consistently held that at the time of trial of
the co­accused if the prosecution does not seek for permission to
simultaneously tender evidence against the absconding accused and if the trial
Court does not record and/or pass order for recording that evidence in
accordance with provision under Section 512 of the Old Code which
corresponds to Section 299, Cr.P.C., then in such a case, the evidence recorded
in the trial against the co­accused cannot be used against the absconding
accused when he faces the trial. (See AIR 1926 Allahabad 346 in the case of
Sheoraj Singh v. Emperor and AIR 193S Patna 49 in the case of Emperor v.
Baharuddin)”
5. Nirmal Singh Vs State of Hariyana, AIR 2000 SC 1416
“..the sole question that arises for consideration is under what circumstances
and by what method, the statements of five persons could have been tendered
in the case for being admissible under Section 33 of the Evidence Act and
whether it can form the basis of conviction. Section 299 of the Code of
Criminal Procedure consists of two parts. The first part speaks of the
circumstances under which witnesses produced by the prosecution could be
examined in the absence of, the accused and the second part speaks of the
circumstances, when such deposition can be given in evidence against the
accused in any inquiry or trial for the offence with which he is charged. This
procedure contemplated under Section 299 of the Code of Criminal Procedure
is thus an exception to the principle embodied in Section 33 of the Evidence Act
inasmuch as under Section 33 the evidence of a witness, which a party has no
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right or opportunity to cross­examine is not legally admissible. Being an
exception, it isnecessary, therefore, that all the conditions prescribed, must be
strictly complied with. In other words, before recording the statement of the
witnesses, produced by the prosecution the Court must be satisfied that the
accused has absconded or that there is no immediate prospect of arresting him
as provided under first part of Section 299 (1) of the Code of Criminal
Procedure.”
6. Ramayana Prasad Pathak v. The State of M.P. (Madhya Pradesh)
(Jabalpur Bench), 2007(1) MPHT 415.
“Evidence of witnesses recorded in the absence of absconding accused.­ Accused
appeared subsequently. It is the duty of prosecution to get those witnesses
examined afresh, subject to the provision of Section 299 (1), Criminal
Procedure Code , i.e., unless they were 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 under the circumstances of the case,
would be unreasonable. It is immaterial that the accused waives his right or
gives latitude to the Court not to re­examine the prosecution witnesses already
examined when he was absconding. It is the duty of the prosecution to examine
afresh the prosecution witnesses whose evidence is necessary in the case.”
Submitted with due respect. Date :­ 10/01/2017
(Arvind M. Bhandarwar)
Additional Chief Judicial Magistrate,
Pune.