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IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
P. Sam Koshy, J.
Farida @ Farid Ahmed, S/o Siddique Ahmed - Revisioner
Versus
The State of Chhattisgarh, through Station House Officer, Police Station Moudahapara, Raipur - Respondent
Criminal Revision No. 511 of 2016
Decided On : 26-08-2016
Arms Act - Sections 25 and 27 – Indian Penal Code - Sections 148, 148, 302/149, 302/120-B – Criminal Procedure Code - Section 397/401 – Offence of murder – Appeal against convicting - Trial Court - Facts relevant for adjudication of revision petition are that Revisionary is an accused in a crime registered at Police Station Raipur and after investigation a charge-sheet was filed before Court of Additional Chief Judicial Magistrate Raipur against accused persons including Revisionary - Revisionary at time of filing was declared as an absconder and there were many other accused who were also declared absconders - Case was registered as Criminal Case - Said trial stood concluded and the judgment was also passed convicting the accused persons – Subsequently a few more accused persons were also arrested and put to trial and in whose case also Trial Court passed a judgment - It is much afterwards that Revisionary also was arrested and was put to trial wherein charge under Sections 148, 148, 302/149, 302/120-B of IPC and Sections 25 and 27 of Arms Act have been framed – Held, In circumstances if absconding accused appears again prosecution witnesses have to be examined afresh - But if deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay expense or inconvenience prosecution would be justified in relying on evidence already on record taken in earlier trial in the absence of the absconding accused - On basis of discussions held in preceding paragraphs as also the ratio laid down by Supreme Court in the case of Abu Salem in opinion of this Court Trial Court also has not committed any error of law while rejecting the objection and application moved by Revisionary accused seeking not to accept evidence of witnesses who are not traceable or who have died as admissible - So far as contention of Counsel for Reversionary in respect of proceeding before Committal Court being taken into consideration by Trial Court for declaring accused as an absconder being bad in law the same is not sustainable - From record what is reflected is that before declaring Revision accused as an absconder proceedings had in fact been complied with under the provisions of Criminal Procedure Code and such a proceeding once having already undertaken at stage of committal of the trial would not be required to be undertaken again by the Trial Court where the matter is being subjected to trial or else it would amount to repeat of a procedure which has already been undertaken further resulting in more delay in the conclusion of trial - Revision petition dismissed
1. The present revision under Section 397/401 of CrPC has been preferred by the Revisioner assailing the order dated 10.5.2016 passed by the Eight Additional Sessions Judge, Raipur in Sessions Trial No. 44 of 2006.
2. Vide impugned order dated 10.5.2016, the Court below has rejected the application filed by the Revisioner seeking not to accept the statements of the witnesses whose statements have been recorded in the first trial and who now have either expired or are not traceable.
3. The facts relevant for the adjudication of the revision petition are that the Revisioner is an accused in a crime registered at Police Station Moudahapara, Raipur and after investigation a charge-sheet was filed before the Court of Additional Chief Judicial Magistrate, Raipur against 13 accused persons including the Revisioner. The Revisioner at the time of filing of challan was declared as an absconder and there were many other accused who were also declared absconders. The case was registered as Criminal Case No. 1766 of 2005. The said trial stood concluded and the judgment was also passed on 8.3.2007 convicting the accused persons. Subsequently, a few more accused persons were also arrested and put to trial and in whose case also the Trial Court passed a judgment on 20.9.2011. It is much afterwards that the Revisioner also was arrested and was put to trial wherein charge under Sections 148, 148, 302/149, 302/120-B of IPC and Sections 25 and 27 of the Arms Act have been framed.
4. Pending the trial an application under Section 299 of CrPC was moved on behalf of the prosecution to accept the evidence of PW-1 Mani alias Manthanlal, PW-10 Gopal Rao and PW-11 Bheekam Soni as admissible. It was contended that PW-1, Mani after his evidence was recorded at the first instance was not traceable and so far as PW-10 and PW-11 are concerned they have since expired and therefore it was prayed by the prosecution before the Trial Court that under the said factual background the evidence of these persons recorded in the absence of the accused may be accepted as admissible. The Revisioner had objected to the same and had also filed an application not to accept to the statements of these witnesses as admissible, which has been rejected by the Trial Court vide order dated 10.5.2016, leading to filing of the present revision.
5. Learned Counsel for the Revisioner assailing the impugned order submits that the Court below was not justified in rejecting the application and the objection filed by the Revisioner. According to him, the rejection of the objection and the application not to accept the evidence of PW-1 Mani alias Manthanlal, PW-10 Gopal Rao and PW-11 Bheekam Soni as admissible amounts to substantially prejudicing the right of the Revisioner particularly so far as his defence is concerned. This, as per the submission of the Counsel for the Revisioner, would amount to denial of fair trial and would also fall within the ambit of denial of fair opportunity of defence.
6. It was also contended by the Counsel for the Revisioner that the application under Section 299 of CrPC moved by the prosecution itself was bad in law for the reasons that the prosecution has not complied with the mandatory requirements before proceeding under Section 299. According to him, the prosecution ought to have first fulfill the requirement under Sections 82 and 83 of CrPC before invoking the provisions of Section 299 of CrPC and in the absence of fulfillment of the conditions stipulated under Section 82, the provisions of Section 299 have been invoked.
7. According to the Counsel for the Revisioner, as per Section 82 of CrPC the Court below ought to have recorded the evidence before proclaiming the accused as an absconder which in the instant case has not been done and therefore the proceedings drawn under Section 299 of CrPC against the Revisioner would be bad in law and illegal. The contention of the Counsel for the Revisioner also is that the statement recorded before the Committa
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