TaxTMI 
TaxTMI 
2009 (5) TMI 1008
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Magistra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....17.10.1995 Dec. 2001 81 Aruta Malleshwar Rao 20.2.1996 1.5.2001 72 Hanumanta Raghunath Jadhav 20.1.1996 5.9.1997 77 Shivajirao Vithalrao Barawkar 14.2.1996 28.7.2003 88 Sham Maruti Bingawade 31.1.1997 25.4.1997 83 Sayajirao Bapusahab Dubal 22.1.1997 14.10.2002 Appellant was formally arrested in the present case on 4th August, 1997. A supplementary charge sheet was filed on 19th August, 1997. Charges were framed against six accused persons including the appellant on 15th November, 2003. In the said proceeding two applications were filed by the Senior Public Prosecutor on 25th September, 1996 and 11th October, 2006 for exhibiting the depositions of PW-36 and nine other witnesses, who had since expired, which by reason of the impugned order have been allowed. Aggrieved by the said order, the appellant is before us. 10. Mr. Manoj Goel, learned Counsel appearing on behalf of the appellant, inter alia would submit: 1. The impugned order is wholly unsustainable as the Designated Judge, TADA, in its order dated 1st January, 1994 on the application under Section 299 of the Code did not assign sufficient and cog....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) Section 299 of the Code, Section 33 of the Evidence Act and Section 14(5) of TADA being cognate provisions, each one of them has a distinct role to play, although the provisions thereof may have been overlapping to some extent. 2) TADA being a special statute and having an overriding effect on other statutes as would appear from Section 25 thereof, Sub-section (5) of Section 14 thereof must also be held to have overriding effect over the provisions of Code of Criminal Procedure and/or the Indian Evidence Act and in that view of the matter the order dated 1st January, 1994 is unassailable 3) Non Recording of reasons, in any event, being only an irregularity, the provisions of Section 465 of the Code would be attracted. 4) Appellant at all the material times being aware of the entire proceeding and having taken part therein from time to time, he cannot at this stage be permitted to turn around and allowed to raise a contention in regard to the applicability or otherwise of an order in the previous case. 5) Charges having been framed against the appellant in terms of an order dated 20th December, 1993 in respect whereof he despite being aware but ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stante clause stating that the provisions thereof or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment or in any instrument having effect by virtue of any enactment other than the Act. 13. We must at this stage also consider the effect of the relevant provisions of the Code. Chapter XXIII of the Code provides for evidence in inquiries and trials. Section 273 of the Code mandates that all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader, which was specifically provided. Section 299 of the Code expressly provides for the power of the court to record evidence in absence of the accused in the following term: 299. Record of evidence in absence of accused. - (1) If it is proved that an accused person has absconded, 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 be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovided--that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right. The Sixth amendment of the United States Constitution explicitly provides therefore, which reads as under: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence. We may, however, notice that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment.... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases,...but also in all types of cases where administrative...actions were under scrutiny. Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department. We may, however, notice that even in the United States of America, the accused's right under the Sixth Amendment is not absolute. The right of confrontment of an accused is subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an accused can be asked to go outside the court room so long he does not undertake to behave in an orderly manner. It was so held in State of Illinois v. William Allen reported in 397 US 337. An accused is, however, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stage the application filed by the prosecution on 1st January, 1994 and the order passed thereon on the same date, which are as under: The application on behalf of the prosecution herein pray that: a. That this Hon'ble Court has framed the charge against the accused Nos. 1 to 12 and absconding accused Nos. 1 to 3 on 30.12.1993 and the case is postponed for hearing and recording of the evidence of the witnesses from today i.e. 1st January, 1994. b. That the evidence which is to be led against the present accused Nos. 1 to 12 is also in respect of the absconding accused Nos. 1 to 8. c. That it is proved that it has become necessary to record the evidence of the witnesses against the absconding accused in their absence. It is, therefore, prayed that the order may be passed to record the evidence against the absconding accused Nos. 1 to 8 in their absence. Pune (Vijay Sawant) Date - 1-1-1994 Special P.P. Order ORDER After splitting up the case with regard to the absconding accused as per the directions of the Honourable Supreme Court in its order dated 23rd November, 1993 in petitions for Special Leave to A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ught to the notice of the Court. The Court's attention should have also been drawn to the aforementioned letter dated 1st September, 1993. Had these facts been brought to the notice of the court, could it pass the impugned order is the question We may assume that the court might have done so. But for the purpose of passing an order, be under Section 299 of the Code or Sub-section (5) of Section 14 of TADA, it was required to apply its mind as regards the existence of the jurisdictional fact. The materials on record were required to be discussed, reasons therefore were required to be recorded. How despite the fact that the appellant had already been custody of the Delhi Police viz-a-viz the Maharashtra Police, he could be termed to be an absconder and there was no prospect of securing his immediate presence, was required to be considered. Indisputably both the conditions contained in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should be not sufficient. It was thus, obligatory on the part of the learned court to arrive at a finding on the basis of the materials brought on record by br....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Kapoor v. Amar Bose AIR 1990 SC 325 this Court held: 12. We have no doubt that the language of Section 21 of the Act clearly forbids the Controller from embarking on an enquiry beyond the ambit of Section 21 itself which may impinge into the sphere of Section 14 of the Act or any other law. We have no hesitation in holding that it is the existence of the aforesaid jurisdictional facts at the time of grant of permission to create a limited tenancy which alone is required to be determined by the Controller, if and when, validity of his permission is assailed at a subsequent stage. This being the scope of his enquiry while granting permission, the scope of enquiry at the subsequent stage cannot be wider. For this reason any objection to the validity of the permission on a ground other than non-existence of the jurisdictional facts at the time of grant of permission is untenable and beyond the scope of the Controller's power to examine validity of his earlier permission before directing restoration of possession to the landlord under Section 21 of the Act. In Manboth v. Emperor, Nazir Ahmad v. Emperor and Rustam (supra) was followed. We must, however, notice that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te prospect of their arrest. There was, however, evidence on the record from which the Magistrate might have reasonably inferred that there was no immediate prospect of arrest.... That case is, indeed, authority for the statement that if evidence is on record that the accused were absconding and there was no immediate prospect of their arrest the absence of a formal finding to that effect does not invalidate the proceedings. Section 512, indeed does not state that there should be a formal finding. But obviously S.512 requires that there should be upon record evidence properly admissible under the Evidence Act. (See also Ghurbin Bind v. Queen Empress 1884 ILR Cal 1097 wherein it has been held that the fact of absconding to be alleged, tried and established).. We may, at this stage, also notice a decision of this Court in Nirmal Singh v. State of Haryana 1999 CriLJ 1836 wherein it was held that Section 299 of the Code is in two parts. In that case the Magistrate, who had recorded the statements under Section 299 of the Code, was examined to indicate that in fact he had recorded the statements. Cross-examination of the said Magistrate was necessary as there was a dispute as to w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 299(1) must be proved and the court concerned must be satisfied and record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is 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 would be unreasonable. In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW- 48/A to PW-48/E. As has been stated earlier, since the law empowers the court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross- examining the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... e) Third arrest of the petitioner on 20th November, 1993 in FIR No. 237/92 of Manikpur Police Station. f) On 20th November, 1993 petitioner was arrested in another FIR No. 161/92 in Virar Police Station. The learned Designated Judge no doubt issued a proclamation but the same was done in February, 1993. 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. If he had a right to take part in the trial, the trial court was duty bound to provide for the same. In any event the learned Designated Judge did not rely on the proclamation made under Section 82 of the Code. It is in the aforementioned situation, we may consider as to whether Sub-section (5) of Section 14 of the Act would be attracted. No application has been filed under the aforementioned provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that it was necessary so to do. The c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was passed in the case of the appellant himself. If he did not want to stand his trial at that stage, the question of issuance of the said direction did not arise. Even the question of splitting of the case with regard to the absconding accused did not arise. Appellant being agreeable not to take adjournment on any ground and his undertaking to fully cooperate in the trial of the case could not arise if he would not have been standing trial. The effort on the part of the appellant to be produced before the TADA Court is evident from the fact that not only he filed an application in that behalf before the Delhi High Court, he even filed several applications in the pending proceedings. The High Court by its order dated 19th December, 1994 directed: The prayer made in this petition is that respondent No. 4, who is required to face trial in a Court in Maharashtra should be transferred to that court. The petitioner forgets that respondent No. 4 is facing a trial in a serious offences in Delhi. It is obvious that unless one trial is over, that other trial cannot take place. Respondent No. 4 cannot be shifted from place to another so that trials can take place simultaneously. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to us that Section 14(5) of TADA would be attracted only when the accused is 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. There is another aspect of the matter which cannot be lost sight of. No charge-sheet was filed against the appellant. In the charge-sheet dated 27th August, 1993, rightly or wrongly, he had been shown as absconding. In the absence of any charge-sheet no cognizance could have been taken against him in the sense that he could not have been directed to stand trial.. It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him. Undoubtedly in the order dated 30th December, 1993, while framing charges his name had been shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in he trial. He was arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003. We have noticed hereinbefore the respective dates of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....national conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. 46. A Fundamental Right is not absolute in terms. 47. It is the consistent view of this Court that `reason to believe', as provided in several provisions of the Act and as defined in Section 26 of the Indian Penal Code, on the part of the officer concerned is essentially a question of fact. 48. The procedures laid down under the Act being stringent in nature, however, must be strictly complied with. It was further held: 52. Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. 53. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. This Court in Kartar Singh v. State of Punjab 1994 CriLJ 3139; JT 1994 ( 2 ) SC 423 ; 199....