CALCUTTA HIGH COURT
Joymalya Bagchi and Bivas Pattanayak, JJ.
Kader Khan —Petitioner
versus
State of West Bengal —Respondent
C.R.R. 3012 of 2018 with CRAN 1 of 2019
(Old No: CRAN 1976/2019) with CRAN 2 of 2021
Decided on 6.5.2022

IMPORTANT POINTS
(1) Recording of evidence against absconders in trial – Deposition of rape victim recorded in course of earlier trial and her statement before Magistrate exhibited therein, cannot be said to be admissible in subsequent trial of absconding petitioner.
(2) Recording of evidence against absconders in trial – Direction by trying Court in course of subsequent trial of an absconder to treat evidence recorded in an earlier trial of co-accused facing same charge is an error in jurisdiction.
(3) Interpretation of Statute – When words of a Statute are clear and unambiguous and no alternate intention can be contextually derived therefrom, it is not within domain of a Court to re-write Statute.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 299(1) – Recording of evidence against absconders in trial – Words used in Section 299 of Cr.P.C. cast an unambiguous duty on Prosecutor to obtain a direction from committing/trying Court that prosecution evidence led in trial of co-accused be also recorded against absconder – Direction by trying Court in course of subsequent trial of an absconder to treat evidence recorded in an earlier trial of co-accused facing same charge is an error in jurisdiction – No Court has jurisdiction to transfer evidence recorded in an earlier trial after its completion as evidence against an accused who had not been put up for trial in earlier case even if both trials are in respect of self-same charge – This is against fundamental principle of criminal jurisprudence that each criminal case has to be tried on the basis of evidence led in said case and not by reference to evidence in other cases – Trial Court erred in law to hold such jurisdictional error was a curable irregularity and ought to be condoned under Section 465 Cr.P.C. in interest of justice. (Paras 24 and 29)

(B) Criminal Procedure Code, 1973 – Section 299(1) – Indian Evidence Act, 1872 – Section 33 – Indian Penal Code, 1860 – Sections 120B/323/506/34 – Recording of evidence against absconders in trial – Deposition of rape victim recorded in course of earlier trial and her statement before Magistrate exhibited therein, cannot be said to be admissible in subsequent trial of absconding petitioner – This unfortunate loss of valuable evidence of a rape victim arises due to prevalence of an archaic law relating to trial of absconders which does not recognize evolution of law relating to waiver of fair trial rights of an absconder justifying trial in absentia and emergence of rights of victims, particularly victims of sexual abuse, against secondary victimization by giving repeated depositions in Court – Section 299 of Cr.P.C. is not only an exception to ordinary rule that evidence in a criminal trial is to be recorded in presence of an accused but also carves out an exception to general rule of relevancy engrafted in Section 33 of Evidence Act and permits evidence of a dead witness to be used against an absconder in a subsequent trial although absconder did not have opportunity to cross-examine such witness in earlier proceeding – Any procedure which negates fair trial rights of accused must be strictly construed and scrupulous compliance thereof is imperative – It is imperative that Prosecutor for invoking provision under Section 299(1) of Cr.P.C. against an absconding accused must prove before committing/trying Court that accused had absconded and there is no imminent possibility of his arrest and upon proof of such facts Court may permit prosecution evidence led during the trial of other accused be recorded against absconding accused also – Impugned order set aside. (Paras 13, 17, 18, 32 and 36)

(C) Interpretation of Statute – When words of a statute are clear and unambiguous and no alternate intention can be contextually derived therefrom, it is not within domain of a Court to re-write Statute and hold that evidence recorded in course of an earlier trial against co-accused be deemed to have been automatically recorded against absconder even when prosecutor has not chosen to invoke the provision of law – Courts have power to interpret a provision purposively so as to give effect to intention of Legislature and remedy wrong which lawmaker seeks to correct – However, it cannot stretch words of Statute to such an extent that an enabling provision to be invoked at discretion of a party and to prejudice of his adversary is converted to a mandatory one. (Paras 29 and 30)

Result: Application allowed.