SB Crlmp No.1614/09.

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IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN

BENCH AT JAIPUR.

O R D E R

S.B. CRIMINAL MISC.PETITION NO.1614/2009.

Mohammed Shafik alias Sheikh Salim

Vs.

State of Rajasthan

Date of Order :- September 22, 2011.

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

Shri Surendra Sharma for the petitioner.

Shri Mahendra Meena, Public Prosecutor for State.

******

Reportable

BY THE COURT:-

1)

This criminal misc.petition under Section

482 Cr.P.C. has been filed by petitioner - Mohammed

Shafik alias Sheikh Salim aggrieved by the order

dated 29/7/2009 passed by learned Additional

Sessions Judge No.1, Kota. Petitioner to facing

trial for offence under Sections 302 and 148 IPC.

Challan against him was filed in absentia with the

aid of Section 299 Cr.P.C. along with co-accused on

23/5/1997. Co-accused Mahesh, Amin, Dinesh and

Gurnam Singh were convicted for offence under

Section 302 read with Sections 149, 147 and 148 IPC

and were sentenced to life imprisonment. However,

accused-petitioner was arrested in January 2007.

Challan was filed against him in absentia and

charge under the aforesaid offence was framed.

SB Crlmp No.1614/09.

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2)

It was in the backdrop of the aforenoted

facts that Public Prosecutor filed an application

under Section 299 Cr.P.C. read with Section 33 of

the Evidence Act with the prayer that statements of

PW3 Man Singh, PW-7 Dr.M.M. Mishra and PW10 Aijaj

Hussain, whose statements were recorded during

trial of the co-accused in absence of the accused

petitioner herein should be read in evidence

without their production before the court because

they have died. It is this order, which is impugned

in this misc.petition.

3)

Shri Surendra Sharma, learned counsel for

the petitioner has argued that requirements of

Section 299 Cr.P.C. were not fulfilled inasmuch as,

when the trial against the co-accused was proceeded

ex-parte in absence of the petitioner, Section 299

Cr.P.C. provides that if it is proved that there is

no immediate prospect of arrest of petitioner, the

court may in his absence examine the witness

produced by the prosectuion and record their

depositions and any such deposition may, on the

arrest of such person, be given in evidence against

him on the inquiry into, or trial for, the offence

with which he is charged, if the deponent is dead

or incapable of giving evidence or cannot be found

or his presence cannot be procured without an

amount of delay, expense or inconvenience, which

under the circumstances of the case, would be

unreasonable. Learned counsel argued that unless

SB Crlmp No.1614/09.

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that satisfaction was arrived at by the learned

trial court when trial of the co-accused proceeded,

the statement of witnesses recorded in that trial

cannot be read against the petitioner. Learned

counsel also referred to Sub-Section (2) of Section

299 Cr.P.C. and argued that according to that

section, an inquiry is required to be made by the

judicial magistrate and examine those witnesses,

who was if and without the accused is arrested,

such statement can be read against him. That

requirement has not been fulfilled. Petitioner

would be gravely prejudiced by reason of the fact

that he did not get the opportunity to cross-

examine those witnesses. Exceptions carved out in

Section 33 of the Evidence Act would not applicable

to this case. Shri Surendra Sharma, learned counsel

for the petitioner argued that the learned trial

court has failed to correctly appreciate the

judgment of Supreme Court in Nirmal Singh Vs. State

of Haryana : AIR 2000 SC 1416. The order passed by

the learned trial court is against the canons of

principles of natural justice and basic principles

of criminal jurisprudence. Learned counsel for the

petitioner in support of his arguments placed

reliance on the judgments of Supreme Court in

Jayendr