IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Joymalya Bagchi And The Hon’ble Justice Bivas Pattanayak C.R.R. 3012 of 2018 With CRAN 1 of 2019 (</b>Ol</b>d </b></b>N</b>o</b>: </b></b>CR</b>AN</b> </b></b>1</b>97</b>6/201</b>9)

With CRAN 2 of 2021 KADER KHAN Vs.

STATE OF WEST BENGAL For the petitioner : Mr. Aloke Sengupta, Sr. Adv.

Mr. Suraj Prakash, Adv.

Mr. Rajdeep Majumder, Adv.

Mr. Amitabha Ray, Adv.

For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.

Mr. Sandip Chakraborty, Adv.

Mr. ParthaPratim Das, Adv.

Heard on : 22.02.2022, 01.03.2022, 02.03.2022, 08.03.2022, 17.03.2022 Judgment on : 06.05.2022 Joymalya Bagchi, J.:-

The case reminds me of an age-old adage ‘to close the stable door after the horse has bolted’. Caught between an absconding accused and unfortunate demise of a rape victim, the prosecution belatedly took out an application praying the evidence of the rape victim recorded in the course of trial of other accused persons (while the petitioner was absconding) be read in evidence in the subsequent trial of the absconder after his arrest.

For a better appreciation of the matters in issue, a brief sketch of events leading to the present imbroglio is desirable:-

On the basis of written complaint of the rape victim against the petitioner and one Nishad Alam, Sumit Bajaj, Md. Nasir Khan, and Md. Ali Khan, herein the Criminal Case being Park Street P.S. Case No. 29 dated 09.02.2012 under sections 376(2)(g)/120B/323/506/34 of the Indian Penal Code was registered for investigation. On 18.02.2012 three accused persons, namely, Nishad Alam, Sumit Bajaj and Md. Nasir Khan were arrested. As the petitioner and one Md. Ali Khan could not be arrested, on 05.03.2012 warrant of arrest was issued against them. On 12.04.2012 proclamation was issued against the absconding accuseds, that is, the petitioner and Md. Ali Khan. Proclamation was published on 13.04.2012 by fixing up notices at the residence of the petitioner and the other absconder, i.e., Md. Ali Khan. On 16.04.2012 a proclamation was affixed at the premises of the Court and published in The Kolkata Gazette as well as the Hindustan Times. Inspite of exhaustion of the aforesaid processes, petitioner and Md. Ali Khan could not be apprehended. Finally charge-sheet was filed against the co-accuseds Nishad Alam, Sumit Bajaj and Nasir Khan showing the petitioner and Md. Ali Khan as absconders. By order dated 10.05.2012 the committing Court took cognizance and since the petitioner and Md. Ali Khan were absconding and there was no imminent chance of their apprehension, the case against them was segregated, that is, filed. Subsequently, upon supply of copies, the case along with the accused persons who were before the Court was committed to the Court of Sessions for trial and disposal. In the meantime, two of the co- accuseds, namely, Md. Nasir Khan and Sumit Bajaj preferred applications for bail before the High Court being C.R.M. 16294 of 2012 with C.R.M. 16608 of 2012. While rejecting their bail prayer on 19.10.2012, a Bench of this Hon’ble Court noted the abscondence of the petitioner and Md. Ali Khan and observed as follows:-

“The Trial Court is directed that by next date if police is not able to apprehend the absconding accused, then in that case it would be proper for the Court to split up the case of the petitioners for trial from the absconding accused persons and to proceed with their trial strictly in terms of the provisions of section 309 Cr.P.C.”

Be it noted, the case against the absconders had already been segregated by then and committed to the Court of Sessions for a trial of other accuseds.

Thereafter, the trial Court proceeded to frame Charge under section

376(2)(g) of the Indian Penal Code against the co-accused persons who had been put on trial and under section 120B/323/506/34 of the Indian Penal Code against Nishad Alam and Md. Nasir Khan. In the charge, the petitioner and Md. Ali Khan were referred to as abscond