Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Must Prove Accused Is Absconding With No Immediate Prospect For Arrest To Record Witness Deposition U/S 299 Crpc: Mohammed Rafi & Ors Vs State Of Kerala & Anr And Connected Matters

Abhijeet Malik ,
  17 January 2022       Share Bookmark

Court :
The High Court of Kerala
Brief :

Citation :
Crl.Appeal Nos.860 and 868 of 2021

DATE OF JUDGEMENT:

10th January 2022

JUDGES:

Justice K.Vinod Chandran

Justice C. Jayachandran

PARTIES:

CRL.A NO. 860 OF 2021

Appellants (s):

1. MOHAMMED RAFI (Accused no. 7)

2. SUBAIR T.P (Accused no. 8)

3. MANSOOR (Accused no. 10)

4. P.M. AYOOB (Accused no. 12)

Respondent (s):

1. UNION OF INDIA

CRL.A NO. 868 OF 2021

Appellants (s):

1. SAJIL(A2) (Accused no. 2)

2. M.K.NZAR (Accused no. 3)

3. SHAFEEQ (Accused no. 4)

4. NAJEEB K.A.(Accused no. 5)

5. AZEEZ ODAKKALIL (Accused no. 6)

Respondent (s):

1. UNION OF INDIA

SUBJECT

In the present case, the High Court of Kerala clubbed together two appeals filed against the order of the Trial Court, that allowed the disposition of a witness under section 299 of the Code of Civil Procedure 1973 after the accused was arrested. The Court was called upon to decide the validity of the order and explain the scope of section 299.

OVERVIEW

1. The case at hand related to the infamous incident where Prof.T.J.Joseph was brutally attacked and his right hand was chopped off, alleging blasphemy in setting up a question paper for college examinations.

2. The case was first registered and investigated by the Kerala police. In its final report, the police arraigned 27 people as accused and 27 as suspects. The investigation was then shifted to the National Investigation Agency (NIA). In its first report, NIA arraigned 9 additional accused. In its 2nd supplementary report, NIA arraigned one more accused. Thus, a total of 37 (27+9+1) people were called to trial before the special court of which 6 were absconding.

3. In the trial against 31 accused persons, Smt.Salomi, the wife of the victim, was examined as Prosecution Witness 1 (PW1). The trial ended in the conviction of 13 accused persons and acquittal of the rest. The case against the six absconding accused (Accused no. 1 to 6) were split up and re-filed as S.C.No.1/2015. In the meantime, accused no. 2, 3, 4, and 6 surrendered, and accused no. 5 was arrested. Accused no.1 remained absconding.

4. In 2017, the NIA filed the third supplementary final report against six more persons. (Accused no. 7-12). Thus, altogether 11 persons (5 out of the original six and 6 other persons) were called upon to face trial. At this juncture, NIA filed Criminal M.P.No.75/2021 (Miscellaneous Petition) seeking issuance of necessary orders to take the sworn-in-statement of Smt. Salomi as evidence against the 11 accused persons. The Court allowed the disposition of Smt. Salomi and dismissed Criminal M.P against accused No.9 and 11 on the finding that they were not absconding at the time when final reports were filed, as they were on bail and no charge sheet was issued against them. Challenging this order, accused no. 2-6 filed Criminal Appeal No.868/2021 and accused Nos.7, 8, 10, and 12 filed Criminal Appeal No.860/2021 in the High Court of Karnataka. The Court had clubbed together both the appeals for adjudication.

5. The learned counsel for the appellants first pointed out that under section 299, the court, which records the evidence of witnesses, should necessarily pass an order recording its satisfaction that the accused person, in whose absence evidence is being recorded, has absconded and there is no immediate prospect of arresting him. The counsel for the appellants further stated that this requirement had not been met for the case in hand.

6. The learned counsel for the appellants argued that the NIA didn’t file any final report that arraigned the appellants as accused persons, hence, Section 299(1) of the Code wasn’t applicable in the present case. The counsel for the appellant directed the attention of the court to the language of section 299(1) to state that for the employment of section 299(1) the person absconding should be an “accused person” in the final report. So section 299(1) can’t be invoked against a person, who had not been arraigned as an accused in the final report.

7. The learned Counsel for the respondents argued that courts should adopt a proactive approach in interpreting Section 299. The Counsel for the respondents further contended that once the jurisdictional fact that the accused had absconded has been established and there is no immediate prospect of his arrest, the stage at which such jurisdictional fact is to be satisfied should not be given over-emphasis as it will frustrate the purpose of the law. The Counsel for the respondents relied on the judgment in the case of Rashid Lakhere v. State of MP; CBI v. Abu Salem Ansari and Others; A.T.Mydeen and others v. The Asst. Commissioner and; Nirmal Singh v. State of Haryana.

LEGAL PROVISIONS

Code of Criminal Procedure 1973

1. Section 82- Proclamation for person absconding.

2. Section 83- Attachment of Property of person absconding.

3. Section 299- Record of evidence in absence of accused.

ISSUES

1. Whether it is mandatory for the court which records deposition of witnesses, in cases where one or more of the accused are absconding, to pass an order recording the existence of jurisdictional facts stipulated in Section 299 of the Code, that is to say,

(i) the accused has absconded and

(ii) there is no immediate prospect of arresting him;

for such evidence recorded to be used subsequently in a trial against those who were earlier absconding, if by any eventuality of, death, incapacitation, or any other valid ground it is impossible to procure the presence of that witness?

JUDGMENT

1. The High Court explained that section 299 operates in two phases:

a) First phase:

The first phase refers to recording the deposition of the witnesses. It can happen either at the pre-committal stage by a committing court or at the trial stage by a court competent to try the case.

b) Second phase:

The second phase is when the absconding accused person is arrested and called upon to face the trial. At his stage the depositions already recorded are liable to be given in evidence against the accused person.

2. The Court then referred the multiple judgments for a comprehensive understanding of section 299:

Emperor v. Rustom

“If it is proved that an accused person has absconded and there is no immediate prospect of arresting him, the court competent, to try or commit for trial such person for the offense complained of may, in his absence, examine the witnesses produced on behalf of the prosecution and record their depositions.”

Smt.Urmila Sahu v. State of Orissa

“At the time of the trial of the co-accused if the prosecution does not seek for permission to simultaneously tender evidence against the absconding accused and if the trial Court does not record and/or pass an order for recording that evidence in accordance with provision under Section 299, Cr.P.C., then in such a case, the evidence recorded in the trial against the co-accused cannot be used against the absconding accused when he faces the trial.”

Jayendra Vishnu Thakur v. State of Maharashtra and Another

The Hon’ble Supreme Court in the present judgment emphasized the requirement for the court to apply its mind as regards the existence of the jurisdictional facts to pass an order under Section 299 of the Code.

3. The court held that satisfaction of the facts specified in Section 299, [i.e. (1) a person accused of having committed an offense has absconded and (2) there is no immediate prospect of arresting him] should necessarily be recorded in the first stage itself, that is to say, before recording the deposition of the witnesses. The order of the trial court cannot be sustained as the jurisdictional facts under Section 299 were not satisfied by the trial Judge, who recorded the deposition of the witnesses. “The exercise which ought to have been done by the trial Judge while recording the depositions of witnesses, in absentia the absconding accused persons, in terms of Section 299, cannot be done by the Judge when the absconding accused is put to trial, pursuant to his apprehension.” held by the court.

4. The Court, therefore, set aside the order of the trial court.

CONCLUSION

The judgment of the High Court of Kerala in the present case will serve as a benchmark verdict in deciding cases where the accused has absconded to escape the clutches of law. Section 299 provides for witness testimony in the absence of the accused. This will also facilitate swift access to justice.

Click here to download the original copy of the judgement

 
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