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Gujarat High Court
Judgename :K.J.VAIDYA, M.H.Kadric
STATE OF GUJARAT - Appellant
Versus
NARUBHAI AMRABHAI CHUNARA - Respondent
CRIMINAL APPEAL 426 of 1994
Decided On : 02/22/1996
Important Point : Principle of hearing the accused before any order of conviction & sentence is recorded can not be stretched to the absurd extent bringing the administration to grinding halt.
When accused in one breath with manifest intention avoids service of notice upon him and successfully manages to do so, he in his second breath cannot be subsequently permitted to say that the appeal against him cannot be heard in his absence when he was not duly served !!! No person can be permitted to earn benefit out of his double standards-own wrong. In fact, under such circumstances not to enlist this appeal on the final hearing board, would be to indirectly play in the hands of some tricky, scheming, mischievious respondnet-accused who is always and quite obviously and out and out, interested in seeing that the matter does not reach the final hearing and thereby successfully avoid final judgment for quite some indefinite time passed against him apprehending that acquittal order if quashed and set-aside, he would be atonce convicted and sentenced for the alleged offences and accordingly forward to jail to serve out the imprisonment. Such deliberately created mischievious situations wherein accused illegally has the upper-hand is simply not permissible and cannot be countenanced that lightly !! The principle of hearing the accused before any order of conviction and sentence is recorded against him, can not be permitted to be abused and stretched to such an illogical and absurd extent where he can bring the administration of justice to the grinding halt at his whims and caprice avoiding the notice to be served upon him keeping the Court at a safe distance, ultimately taking advantage of his own illegal absconsion !!
[Para 3]
Now, by virtue of this section 390 of the Code only, this court has issued the bailable and thereafter the non-bailable warrant. In fact, as soon as this court on perusing the impugned judgment and order of acquittal reached the prima facie conclusion that there was sufficient ground for issuing notice to the respondent, his status as an accused person and proceedings against him stand revived. This is a settled legal position. Now once the status of the respondent as an accused person sands revived and when even in absence of the accused, as per the provisions contained in section 299 of the Code, the evidence can be recorded by the trial Court in his absence by examining the witnesses, the appellate court can certainly hear and decide the appeal in his absence more particularly when the provisions contained in section 82 of the Code are duly complied with and we are further satisfied on the basis of the affidavit filed by the concerned police officer that the accused is absconding.
[Para 4]
( 1 ) " Whether an acquittal appeal filed by the State of Gujarat in the first instance can be said to be ready for the purposes of the same being enlisted in the final hearing board, more particularly in cases wherein the respondent-accused is declared absconding by the Court under Sec. 82 of the Criminal Procedure Code, 1973, and no appearance has been filed on his behalf and further as the very offshoot of the same, in the second instance, whether the said appeal can be heard and finally disposed of at the back or in absence of the said absconding accused ? This in short are two questions of indeed quite great importance which arise for consideration in the context and background of the following facts and circumstances of the instant case.
( 2 ) STATING succinctly, the respondent-Narubhai Amrabhai Chunara who came to be tried vide Sessions Case No. 236 of 1992 for the alleged offences punishable under Secs. 367, 323 read with Sec. 34 of I. P. C. by the learned Additional Sessions judge, Kheda at Anand, was at the end of trial by the judgment and order dated 17-1-1994, ordered to be acquitted. Feeling aggrieved by the same, the State has preferred the present acquittal appeal, which came up for admission before this Court (Coram : K. J. Vaidya and B. J. Shethna, JJ.) wherein on 11-7-1994 following order was passed :-"r and P to be called for so as to reach this Court on or before 18-7-1994. Matter to be placed on board on 19-7-1994. This order to be communicated telephonically also today. " thereafter, on receipt of the R and P, on 21-7-1994, this Court passed the following order : "leave granted. Appeal admitted. Bailable warrant be issued in the sum of rs. 5,000/- and a surety of the like amount. "
( 3 ) 1 Thereafter as the bailable and failing which non-bailable warrant returned unexecuted with the police remarks that the accused was not available at his residence and further that his whereabouts were also not known, the learned A. P. P. requested this Court to grant some time to make an appropriate application under Sec. 82 of the Code to take further necessary steps for declaring the accused absconding. This was granted. The learned A. P. P. accordingly filed Misc. Criminal Application no. 4609 of 1995 for declaring the respondent as absconding. The said application was granted by an order dated 8-12-1995. Today, Mr. J. A. Shelat, the learned a. P. P. has submitted an affidavit filed by Mr. A. B. Joshi, Sr. P. S. I. , Umreth Police station wherein it is stated that necessary proclamation was published in local dailies, viz. , gujarat Samachar and naya Padkar dated 19-12-1995 directing the respondent to appear before P. I. , Umreth Police Station between 11-00 A. M. and 6-00 P. M. within 30 days from the date of publication of the proclamation in the said newspapers. Further, according to the learned A. P. P. despite the aforesaid notice issued in the two local dailies, since within the stipulated period of 30 days the respondent has not appeared before the concerned P. I. , not only he should be declared as absconding, but the acquittal appeal filed against him by the State be treated as ready for final hearing and the office be accordingly directed to place the same on final hearing board as and when its turn is due in its ordinary course.
( 4 ) NOW, ordinarily, a matter cannot be said to be ready to be placed on the final hearing board till the date concerned accused against whom it is admitted is duly served and appears before the Court either personally or through his learned advocate. To this ordinary practice, one just and legal exception is carved out where the respondent when found to be absconding, and ultimately declared to be so by this Court there is indeed no question of serving any other notice upon him and matter can be said to be or deemed to be ready for all purposes. When accused in one breath with manifest intention avoids service of notice upon him and successfully manages to do so, h
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