2009 Supreme(SC) 1054

2009(4) Supreme 667
SUPREME COURT OF INDIA
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Jayendra Vishnu Thakur — Appellant
versus
State of Maharashtra and another — Respondents
Criminal Appeal No. 981 of 2009
(Arising out of SLP (Crl.) No. 6374 of 2007)
Decided on : 11-05-2009

IMPORTANT POINTS
Right to cross examine a witness, apart from a natural right is a statutory right.
Section 14(5), TADA Act and section 299, Cr. P.C. operate in different fields.
Once the accused surrenders, the attachment shall be withdrawn. Complainant cannot derive any benefit out of attachment of property of the accused.
An order passed in violation of fundamental right or in breach of natural justice would be nullity.

Headnote:(a) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 12 – A Designated Judge while holding trial under the Act has the power to determine all questions including the question as regards his own jurisdiction. (Para 12)

        (b) Constitution of India – Article 21 – An accused is always entitled to a fair trial as also to a speedy trial – But his rights are not absolute and he cannot interfere with the governmental priority to proceed with the trial – At the same time it is necessary is to maintain judicial dignity and decorum. (Para 13)

        25 L. Ed 2d 287; 3 L Ed 2d 1377 – Referred to.

        (c) Code of Criminal Procedure, 1973 – Section 299 – For invoking the provision, principle of natural justice is inbuilt in the right of an accused. (Para 13)

        (d) Indian Evidence Act, 1872 – Section 138 – Right to cross examine a witness, apart from a natural right is a statutory right – 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. (Para 13)

        (2008) 2 SCC 417 – Relied upon.

        (e) Indian Evidence Act, 1872 – Section 3 – Evidence has to be proved – Existence of an evidence is not enough – Application of mind by the court is imperative. (Para 14)

        (f) Code of Criminal Procedure, 1973 – Section 299 – Both conditions in first part of the section must be read conjunctively and not disjunctively – Court must be satisfied about both the conditions. (Para 16)

        (1990) 1 SCC 234; (2000) 4 SCC 41 – Relied upon.

        AIR 1915 All 411; AIR 1956 Mys. 1; AIR 1944 Nag 274; AIR 1936 PC 253: 17 Lah. 629; AIR 1947 Sind 122; 1884 (10) ILR Cal 1097 – Cited with approval.

        AIR 1918 All 60 – Distinguished.

        (g) Code of Criminal Procedure, 1973 – Section 299 – For invoking section 299, the Magistrate was required to hold that the accused was absconding on that date – However he could not do so. (Para 17)

        (1976) 1 SCC 172 – Relied upon.

        (h) Code of Criminal Procedure, 1973 – Section 299 – Once a person is arrested and/or is otherwise capable of being brought to court, the proclamation ceases to have any effect. (Para 17)

        (i) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 14(5) – Court was required to opine that recording of evidence is urgent – However, if neither the accused nor his pleader had an occasion to be before the Court, the provision may not be held to have any application – Relevance of the evidence as envisaged under Section 33 of the Evidence Act is not taken away by this provision. (Para 17)

        (j) Waiver – An accused ordinarily would not be presumed to have waived his right – An order which is a nullity being without jurisdiction, cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. (Para 17)

        AIR 1979 SC 193 – Relied upon.

        (k) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 14(5) and section 299, Cr. P.C. – They operate in different fields – Their ingredients are different. (Para 17)

        (l) Judicial Review – Enforcement of law and protection of citizen from injustice is required to be balanced. (Para 17)

        2008 (9) SCALE 691; (1994) 3 SCC 569; (2005) 3 SCC 241 – Relied upon.

        (m) Code of Criminal Procedure, 1973 – Section 82 – The provision was enacted to secure the presence of the accused – Once the purpose is achieved, the attachment shall be withdrawn – Complainant cannot derive any benefit out of attachment of property of the accused – Attachment and sale of the property even after surrender of the accused causes great prejudice to him. (Para 17)

        (2008) 4 SCC 649 – Relied upon.

        (n) Code of Criminal Procedure, 1973 – Section 299 – Non-observance of principles of natural justice is itself prejudice to any man – An order passed in violation of fundamental right or in breach of natural justice would be nullity. (Para 17)

        (1980) 4 SCC 379; (1988) 2 SCC 602; (2004) 12 SCC 673; (2005) 7 SCC 447 – Relied upon.

       Facts of the case :

        1. One Suresh Narsinh Dube was shot dead at Nallasopara Railway Station in the suburbs of Mumbai on 9th October, 1989. The impleaded respondent herein, the brother of the deceased, filed a complaint petition with regard to the incident. Appellant absconded.

        2. A proclamation under Section 82 of the Code was thereafter issued on 9th February, 1993 declaring the appellant as a proclaimed offender.

        3. In connection with the said occurrence initially 12 persons were charge-sheeted upon completion of investigation on 27th August, 1993, wherein eight persons, including the appellant, were shown to be absconding. Appellant and other accused were also booked under TADA.

        4. In the said proceeding two applications were filed by the Senior Public Prosecutor on 25th September, 1996 and 11th October, 2006 for exhibiting the depositions of PW-36 and nine other witnesses, who had since expired, which by reason of the impugned order have been allowed.

        5. Aggrieved by the said order, the appellant is before us.

       Finding of the Court :

        Impugned order cannot be sustained.

       Result : Appeal allowed.