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2012 Supreme(J&K) 815
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mansoor Ahmad Mir, J.
Sonaullah Naik -Appellant
Versus
State -Resopndent
Cr. Revision No. 32-2012
Decided On : 10-12-2012
Sunil Sethi, Ab. Hafeez, Inderjeet Gupta, R.S. Thakur, Ashwani Thakur.
The main legal point established in the judgment is that the accused's right to conduct cross-examination is a statutory right, and the statement of witnesses is incomplete unless cross-examined by the adverse party.
Headnote:
Criminal Revision - Joint Trial - Section 512 Cr.P.C. - The court discussed the principles and concept of Section 512 Cr.P.C. and emphasized the aim and object of the section to ensure that important evidence is not lost by the time accused remained absconding till his arrest. The court highlighted the exception provided by Section 512 Cr.P.C. to preserve evidence against the absconding accused and the right of cross-examination when the accused appears. The court also referred to relevant provisions of the Evidence Act and discussed the admissibility of evidence and the right to cross-examination. The court cited precedents to support the view that the accused's right to conduct cross-examination is a statutory right and the statement of witnesses is incomplete unless cross-examined by the adverse party. The court concluded that the trial court's order for a separate trial was bad in law and directed the trial court to conduct the trial of all accused, including the petitioner, and conclude the same as early as possible.
Fact of the Case:
The police conducted an investigation and presented a challan against accused No. 1 to 7. Accused No. 1 and 2 were reported absconding, and proceedings under section 512 of the Code were drawn. The trial court framed charges against accused 3 to 7, and during the trial, petitioner-accused No. 1 appeared, was chargesheeted, and moved an application to conduct his trial along with accused No. 3 to 7 without cross-examination. The trial court dismissed the application and directed a separate trial for accused No. 1.
Finding of the Court:
The court found that the trial court's order for a separate trial was bad in law as the accused had surrendered, pleaded not guilty, and adopted the statements of the witnesses recorded in his absence to be read against him. The court emphasized the accused's statutory right to conduct cross-examination and concluded that the trial court's order would cause delay.
Issues: The issues involved the legality of the trial court's order for a separate trial for the petitioner-accused No. 1 and the admissibility of evidence recorded in the absence of the accused.
Ratio Decidendi: The court held that the accused's right to conduct cross-examination is a statutory right and the statement of witnesses is incomplete unless cross-examined by the adverse party. The court concluded that the trial court's order for a separate trial was bad in law and directed the trial court to conduct the trial of all accused, including the petitioner, and conclude the same as early as possible.
Final Decision: The court set aside the trial court's order and directed the trial court to conduct the trial of all accused, including the petitioner, and conclude the same as early as possible.
SUMMARY OF THE CASE
2. Police Station Ramban conducted investigation in case FIR No. 65/1998 and after completion of said investigation, Challan in terms of Section 173 of the Code of Criminal Procedure, for short as Code, was presented against accused No. 1 to 7. At the time when challan was presented and thereafter when case was committed to Sessions Court, Ramban, only accused No. 3 to 7 were present and against accused No. 1 and 2, because of having been reported absconding, proceedings under section 512 of the Code were drawn.
3. Trial Court viz. Sessions Court, Ramban framed charge against the accused 3 to 7 who pleaded not guilty and claimed to be tried.
4. During the pendency of the trial, petitioner-accused No. 1 appeared before the trial court on 15th December, 2011, was chargesheeted vide order dated 3rd March, 2012 and prosecution was directed to lead evidence.
5. The petitioner-accused moved an application with the averments that the evidence already on record be read against him without conducting cross-examination. Therefore, his trial be conducted along with accused No. 3 to 7.
6. Trial court, after consideration, dismissed the application vide impugned order and directed that separate trial be conducted against the accused No.1 on the ground that all witnesses have to be called afresh during the trial of accused No. 1, petitioner.
7. Feeling aggrieved the petitioner questions the impugned order by the medium of present petition; which states that impugned order is illegal and trial court cannot put petitioner to separate trial; that petitioner has given up his right to cross-examination and submits that the evidence already recorded be read against him. Petitioner has prayed that impugned order, being bad, be set-aside and trial court be directed to conduct trial of petitioner-accused No. 1 along with accused 3 to 7 without calling the witnesses, already examined by the prosecution, for cross examination.
8. I have gone through the impugned order and perusal whereof makes a room for consideration, a question, as to whether the trial court was within its powers to direct for separate trial and ask the prosecution to examine all the witnesses afresh so far it relates to petitioner, accused No.1?
9. To have the question answered, the principles and concept of the Section 512 Cr.P.C. in the first instance need to be emphasized, therefore, Section 512 Cr.P.C. may be reproduced thus:-
"512. Record of evidence in absence of accused
(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, is his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown,- If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court may direct that any (judicial Magistrate) of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the depon
