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: Failure to invoke fatal for using evidence against absconder
A Fatal Procedural Oversight
The has delivered a significant ruling underscoring the procedural rigour required when prosecution seeks to use evidence recorded in an earlier trial against an . A Division Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak set aside a trial court order that had permitted the use of a deceased rape victim's deposition and statement against Kader Khan, a who evaded arrest until after the witness had died.
The court held that the prosecution's failure to invoke during the earlier trial of co-accused persons was fatal, and no direction could cure that . The judgment also urged Parliament to consider introducing a mechanism, a call that has since been answered by the .
The Park Street Gang Rape Case
The case originated from a written complaint lodged in alleging gang rape by five persons, including Kader Khan and Md. Ali Khan. While three co-accused were arrested promptly, Kader Khan and Ali Khan remained at large. Arrest warrants, proclamations, and publication in the Kolkata Gazette and Hindustan Times yielded no result. In , the committing court segregated their case, holding that there was “no imminent chance of their apprehension.”
The trial of the arrested accused proceeded. The victim—the —testified along with 44 other witnesses. Significantly, the prosecution never applied under for a direction that the evidence be recorded against the absconders as well. Three co-accused were convicted under . The victim unfortunately died on .
Kader Khan was finally arrested on . In the subsequent trial, the prosecution moved an application under , seeking to read the victim's earlier deposition—and her statement under —into evidence. The trial court allowed the application. Kader Khan challenged that order before the High Court.
vs.
The petitioner, represented by , argued that the prosecution's application under Section 33 of the Evidence Act was wholly misconceived. The correct provision was Section 299(1) CrPC, which required the prosecution to prove the accused's abscondence and obtain a specific court direction during the earlier trial that the evidence being recorded be treated as recorded against the absconder too. No such prayer was made, and no direction was passed. The statute, he contended, must be followed strictly.
The State, represented by , countered that the record—including the issuance of warrants, proclamations, and the committing court's finding of no imminent possibility of arrest—conclusively proved abscondence. The trial court, while framing charges, had itself described the petitioner as an absconder. Since the victim had undisputedly died, both conditions of Section 299 were satisfied. The failure to invoke the provision was at best an irregularity, curable under and without prejudice to the absconder.
An , Not a Mandate
Justice Bagchi, writing for the bench, undertook a detailed analysis of and its interplay with Section 33 of the Evidence Act. Section 33 allows use of prior deposition when the witness is dead, but only if the adverse party had the right and opportunity to cross-examine. An absconder, not being present, has no such opportunity. carves out an exception: if the prosecution proves abscondence and no immediate prospect of arrest, the court may direct evidence to be recorded in the absconder's absence. That recorded evidence can later be used if the witness dies or becomes unavailable.
The court emphasised that this provision negates two fundamental —the () and the (). Citing , the bench noted these rights are part of the recognised under the (Article 14(3)(d)). Any procedure that extinguishes them must be strictly construed.
The court rejected the argument of . “I am unable to accept the contention of the Public Prosecutor that such exercise could be undertaken during the subsequent trial upon the arrest of the petitioner and have the evidence in the earlier trial used against him in the event the witness is dead,” Justice Bagchi observed. The provision is an enabling one, to be invoked during the earlier trial when the witness is available. An direction after the witness has died operates to the prejudice of the accused by retrospectively extinguishing his when he was not even before the court.
A Cascade of Precedents
The judgment examined several authoritative pronouncements:
- Nirmal Singh v. State of Haryana (2000): Section 299 is an exception to the principle embodied in Section 33 of the Evidence Act.
- Vijay Ranglal Chorasiya v. State of Gujarat (2014): The disapproved reliance on evidence recorded in an earlier trial that had not been validly transferred under Section 299.
- A.T. Mydeen v. Assistant Commissioner, Customs (2021): Evidence recorded during trial of a co-accused cannot be used against an absconder tried separately for the same offence.
- A. Devendran v. State of Tamil Nadu (1997): cannot cure a patent .
- State of Hyderabad v. Bhimaraya (1953) and King Emperor v. Baharuddin (1939): invocation of the (equivalent to Section 299) is impermissible; the prosecution must move the court contemporaneously.
The court expressly disagreed with the view of the in , which had held that reading evidence against an absconder would prevent giving a premium to abscondence. “The Court appears to have lost sight of the enabling/discretionary nature of law which gives the option to the prosecutor to invoke the said provision,” the bench noted.
A Call for Legislative Reform
The judgment acknowledged the tragic loss of the victim's valuable evidence due to the interplay of abscondence and prosecution oversight. “This unfortunate loss of valuable evidence of a rape victim arises due to the prevalence of an relating to trial of absconders,” it observed. The bench referred to (), where the accused's deliberate absence was held to infer of the . It also cited Hussain v. Union of India (2017), where the took note of providing for trial in absentia.
The court recommended that appropriate authorities consider amending the CrPC to incorporate a provision for trial in absentia of . This call has since been answered: , now permits trial in absentia for proclaimed offenders, though legal commentators have flagged potential constitutional concerns regarding the "" fiction, the absence of an , and the .
The Verdict
The High Court allowed the revisional application, setting aside the trial court's order dated . The deposition of the rape victim recorded in the earlier trial and her statement under were ruled inadmissible in the subsequent trial of Kader Khan. The connected applications were disposed of. The Registrar General was directed to forward a copy of the judgment to the for consideration of the suggested amendments.
Key Observations from the Judgment
“I am unable to accept the contention of the Public Prosecutor that such exercise could be undertaken during the subsequent trial upon the arrest of the petitioner and have the evidence in the earlier trial used against him in the event the witness is dead. A plain reading of section 299(1) CrPC would not yield to such interpretation.”
“When words of a statute are clear and unambiguous and no alternate intention can be contextually derived therefrom, it is not within the domain of a Court to re-write the statute and hold that evidence recorded in the course of an earlier trial against co-accused be deemed to have been automatically recorded against the absconder even when the prosecutor has not chosen to invoke the aforesaid provision of law.”
“This unfortunate loss of valuable evidence of a rape victim arises due to the prevalence of an relating to trial of absconders which does not recognize the evolution of law relating to of of an absconder justifying trial in absentia and emergence of rights of victims, particularly victims of sexual abuse, against by giving repeated depositions in Court.”
