Jayendra Vishnu Thakur vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Ori) 170

2009 (II) OLR (SC) — 161
S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.
Jayendra Vishnu Thakur... Appellant
Versus
State of Maharashtra and another ... Respondent(s)
Criminal Appeal No. 981 of 2009
[Arising out of SLP (Crl.) No. 6374 of 2007]
Decided on 11th May, 2009.

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 299(1) - The provision is in two parts - First part provides for proof of jurisdictional fact in respect of abscontion of an accused person - Second that there was no immediate prospect of arresting him - In the event, an order under the said provision is passed, deposition of any witness taken in absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable. (Para - 13)
       2. EVIDENCE ACT, 1872 - Secs. 137, 138 - A right to cross-examine a witness, apart from being a natural right is a statutory right - Sec. 138 confers a right on the adverse party to cross-examine a witness who had been examined in chief. (Para - 13)
       3. INTERPRETATION OF STATUTE - Principle of - Any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. (Para - 14)
       4. EVIDENCE ACT, 1872 - Sec. 3 - The prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the Court in regard to the fact required to be proved by a statute - Existence of an evidence is not enough but application of mind by the Court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character. (Para - 14)
       5. CRIMINAL PROCEDURE CODE, 1973 - Sec. 82 - Once a person is arrested and/or is otherwise capable of being brought to Court, the proclamation ceases to have any effect - Once a person is arrested, he cannot be considered as a proclaimed offender - It is not a law that once a proclaimed offender shall all along be treated to be so. (Para - 17)
       6. CONSTITUTION OF INDIA, 1950 - Art. 21 - Trial - It envisages a fair trial, a fair procedure and a fair investigation - An accused is always entitled to a fair trial - He is also entitled to a speedy trial but then he cannot interfere with the governmental priority to proceed with the trial which would be defeated by conduct of the accused that prevents it from giving forward - Several options are open to Courts - It is necessary to maintain judicial dignity and decorum. (Para - 13)
       7. TERRORIST AND DISRUPTIVE AUTHORITIES (PREVENTION) ACT, 1987 - Sec. 14(5) - The section would be attracted only when the accused if facing trial and/or otherwise represented through his advocate - If neither the accused nor his pleader had an occasion to be before the Court, Sub-section (5) of Section 14 may not be held to have any application. (Para - 17)

JUDGMENT

S.B. SINHA, J. — 1. Leave granted.

2. Interpretation of the provisions of Section 299 of the Code of Criminal Procedure, 1973 (for short ‘the Code’), Section 33 of the Indian Evidence Act, 1871 as also Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short ‘the TADA’) is involved in this appeal which arises out of a common order dated 6th March, 2007 passed by the Designated Court (TADA), Pune, in Application Exh. 1118 and 1227 in TSC No. 2/1996, 1/1997 and 2/1997.

3. The said question arises in the following fact situation.

One Suresh Narsinh Dube was shot dead at Nallasopara Railway Station in the suburbs of Mumbai on 9th October, 1989. The impleaded respondent herein, the brother of the deceased, filed a complaint petition with regard to the incident. Appellant absconded.

A proclamation under Section 82 of the Code was thereafter issued on 9th February, 1993 declaring the appellant as a proclaimed offender. Subsequently, the said proclamation was also published in different newspapers on various dates.

In connection with the said occurrence initially 12 persons were charge-sheeted upon completion of investigation on 27th August, 1993, wherein eight persons, including the appellant, were shown to be absconding. Appellant and other accused were also booked under TADA.

Indisputably, in connection with a case arising out of FIR Nos. 140-144 of 1993 the appellant was arrested in Delhi on 23rd July, 1993. By a letter dated 1st September, 1993 the Investigating Officer in the present case informed the Designated Judge, TADA Court at Mumbai in regard to the appellant’s arrest in the Delhi case.

4. Appellant was arrested by the Maharashtra Police on 23rd October, 1993 in connection with FIR No.3/1992 and was produced before the Chief Judicial Magistrate, Thane on 24th October, 1993 and was remanded to police custody till 20th November, 1993. He was again shown to have been arrested on 20th November, 1993 in two cases; one relating to FIR No. 237/1992 of Manikpur Police Station and the other in FIR No.161 of 1992 of Virar Police Station. He was in judicial custody till 21st December, 1993.

5. On a Special Leave Petition (Crl.) Nos. 643-646 having been filed before this Court by the appellant and others, this Court by its order dated 23rd November, 1993 inter alia directed splitting up of the case with regard to the absconding accused. Charges in the matter were framed by the Designated Judge on 30th December, 1993.

6. On an application filed by the Public Prosecutor under Section 299 of the Code, an order was passed by the Designated Judge on 1st January, 1994.

7. The State of Maharashtra filed a writ application before the High Court of Delhi for securing the presence of the appellant in the cases pending in the State of Maharashtra including the case in question, which by reason of an order dated 19th December, 1994 was dismissed.

On or about 11th July, 1995 an application under Section 83 of the Code was filed by the Investigating Officer through the Public Prosecutor wherein it was admitted that the appellant had not been absconding.

8. On an application moved by the State of Maharashtra to the Designated Judge, TADA, Delhi for transfer of the appellant to Maharashtra, the Designated Judge by his order dated 21st July, 1995 refused to do so in view of the order passed by the High Court on 19th December, 1994.

Appellant moved an application for production warrant for recording his plea against charges which was dismissed on 25th July, 1995.

Yet again he filed an application on 21st August, 1995 praying for issuance of transfer warrant.

9. Indisputably 10 witnesses were examined during the period 6th November, 1995 to 22nd January, 1997, who have since expired. Their names, respective dates of their deposition and dates of death, are as under:-

PW No. Name of the Witness Date of deposition Date of death

36 Parhuram Sonu Kawale 6.11.1995 29.1.2004

60 Bharat Jaggubhai Ra

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2009 Supreme(Ori) 170

2009 (II) OLR (SC) — 161S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.Jayendra Vishnu Thakur... AppellantVersusState of Maharashtra and another ... Respondent(s) Criminal Appeal No. 981 of 2009[Arising out of SLP (Crl.) No. 6374 of 2007] Decided on 11th May, 2009.

Cases Referred (13)

2009 (II) OLR (SC) — 161
S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.
Jayendra Vishnu Thakur... Appellant
Versus
State of Maharashtra and another ... Respondent(s)
Criminal Appeal No. 981 of 2009
[Arising out of SLP (Crl.) No. 6374 of 2007]
Decided on 11th May, 2009.