( 1 ) HEARD Counsel for the parties.

( 2 ) APPLICANT had filed application for discharge before the trial Court in respect of a pending trial against him for offences punishable under the provisions of The Prevention of Corruption Act and Indian Penal Code. That application has been rejected by the Special Judge, CBI, Greater Bombay by judgment and Order dated November 20, 2003, essentially on the ground that the applicant cannot be heard on his discharge application because he is an absconding accused. It is matter of record that proclamation proceedings were taken out and order has been passed against the applicant in that behalf. Besides, non-bailable warrants are pending against the applicant in connection with the trial, which is pending before the lower Court since 1998. The applicant has so far successfully avoided arrest and is stated to be residing in U. S. A.

( 3 ) THE moot question, therefore, which arises for my consideration is: whether any fault can be found with the approach of the lower Court in rejecting the discharge application merely because the applicant is an absconding accused?

( 4 ) ACCORDING to the learned Counsel for the applicant even if the applicant is an absconding accused, that does not absolve the trial Court of its obligation to sift the evidence to ascertain whether charge ought to be framed against the applicant on the basis of materials produced before it; and if it is so, the fact that the accused is absconding, will make no difference and the Court will be obliged to consider the Application for discharge on its own merits, uninfluenced by the fact that the applicant is absconding.

( 5 ) TO buttress this proposition, reliance is placed on the decisions of the apex Court in the case of Union of India vs. Prafulla Kumar Samal reported in (1979) 3 SCC 4 and in the case of Satish Mehra vs. Delhi Administration and anr. reported in (1996) 9 SCC 766.

( 6 ) INDEED, the abovesaid two decisions, which are pressed into service generally mention the parameters of section 227 of the Criminal Procedure Code and the duty of the Trial Court in that behalf, which requires the Trial Judge to consider the case on its own merits and not to act as mere post office or a mouth piece of the prosecution. There can be no quarrel with the said principles and the trial Judge will be bound to abide by the same. However, these decisions are of no avail to the fact situation of the present case. Inasmuch as, we are faced with a situation where the absconding accused has applied for discharge by taking out a formal application in that behalf. If such application is filed, obviously, that accused can be heard on merits only if he was to subject himself to the jurisdiction of the trial Court. Accused would be treated as having subjected to the jurisdiction of the trial Court, after he has appeared in person before the Court and released on bail; but by no stretch of imagination, an accused who is a fugitive accused and successfully avoided arrest after filing of charge-sheet against him, as back as on 30th September, 1998, can be allowed to move the trial Court for discharge through his Counsel.

( 7 ) TO get over this position, Counsel for the applicant suggested that as the application has been filed in this Court, the applicant may be treated to have subjected himself to the jurisdiction of this Court and be heard through his counsel. Even this submission does not commend to me. In the first place, in criminal trial, the accused cannot be said to have subjected to the jurisdiction of the Court, unless, he personally appears before the Court and avails of bail. There can be no other way such as appearance through Counsel, as is suggested. It will be a different matter where he appears before the Court and the Court exempts his personal presence. As requirement of subjecting to the jurisdiction of the trial court, has not been complied by the present applicant, the fact of filing of this revision Application or app