A Magistrate cannot pass an order of commitment in the absence of the accused, even if evidence has been recorded under section 512 CrPC.

Nesargi, J.-This is a reference made under section 432, Criminal Procedure Code, by the Sessions Judge, North Kanara, Karwar, praying that the order of commitment passed by the Judicial Magistrate, First Class, Kaliyal, in C.C. No. 1103 of 1971 against Anton Bastynav Vaniyache Siddi be quashed.

2. The police charge-sheeted Anton Bastynav Vaniyache Siddi for the offence under section 302 Indian Penal Code. Anton Bastynav Vaniyache Siddi was shown to be absconding. The Magistrate took all the steps provided in Chapter VI, Criminal Procedure Code, to secure the presence of the absconding accused. It was conclusively found that he was absconding. Thereafter, a child witness was produced before the Magistrate and the prosecution requested that her evidence be recorded under the provisions of section 512 Criminal Procedure Code. The Magistrate recorded her evidence and thereafter he passed an order of commitment committing the accused to the Court of Sessions at Karwar for taking his trial for the offence under section 302, Indian Penal Code. The learned Sessions Judge has in this reference stated that the order of commitment Is not sustainable in law.

3. Sri Nagappa, learned Advocate appearing on behalf of the State, supports the reference. In our opinion, the law does not contemplate passing of an order of committing of an accused to the Court of Sessions, in the absence of the accused. Section 207-A(4), Criminal Procedure Code, provides for taking of the evidence in committal enquiries. Section 353, Criminal Procedure Code, lays down that evidence will have to be recorded in the presence of the accused or when his personal attendance is dispensed with, in the presence of the pleader of the accused. Section 512, Criminal Procedure Code, is provided by way of exception, in the interest of preserving evidence even when the accused is absconding. It lays down that if it is proved that an accused person is absconding, 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, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record deposition. It further lays down that such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial if the deponent is dead or incapable of attending the Court, for the reasons mentioned in section 512, Criminal Procedure Code. A plain reading of section 512, Criminal Procedure Code, makes it manifest that it is a provision enabling the Court to record evidence in the absence of accused when it is found that he is absconding. Section 353, Criminal Procedure Code mentioned above makes an exception that except as otherwise expressly provided all evidence should be taken in the presence of the accused or when his personal attendance is disposed with, in the presence of the pleader of the accused. Section 512, is one of such exceptions, but by the very provisions, it is made clear that the evidence of witnesses recorded under section 512, Criminal Procedure Code, cannot be used against the accused after his arrest unless certain conditions mentioned above, are satisfied. It is therefore certain that merely because the evidence is recorded under section 512, Criminal Procedure Code, a Magistrate holding committal enquiry under section 207-A, cannot proceed to pass an order of commitment without observing the further procedure provided in sub-sections (6) to (14) of section 207-A, Criminal Procedure Code.

4. Sub-section (6) of section 207-A, Criminal Procedure Code lays down that when the evidence referred to in sub-section (4) has been taken and the Magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, suc

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