Pandian, Annadurai and Ramakrishnan vs State

A.S. Venkatachalamoorthy, J.—The appellants herein (A-1, A-3 and A-4) were tried along with four others by the learned Additional

District and Sessions Judge (Fast Track Court No. 1), Salem, in Sessions Case No. 1 of 2000, for various offences including the one u/s 302 read

with 34 IPC.

The case of the prosecution is that the appellants herein and four others caused the murder of one Sampath in front of his house in Kottavadi

Road in Athanurpatti Village at about 9.00 P.M. on 17.08.1998. Even though the first appellant/first accused absconded himself during trial, the

learned Sessions Judge went on with the trial and by Judgment dated 09.01.2003, held that the appellants herein are guilty u/s 304 read with 34

IPC. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default to undergo rigorous imprisonment for

one year. The learned Sessions Judge found the 1st appellant/1st accused also guilty u/s 120B IPC. and sentenced him to undergo life

imprisonment and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for one year. The sentences imposed on the 1st

accused/1st appellant under Sections 302 read with 34 IPC. and 120B IPC. were ordered to run concurrently.

Though this appeal has been filed on behalf of A-1, A-3 and A-4, we are constrained to split up the appeal in respect of A-1 alone and dispose

of the same independently at the stage of admission itself since there appears to be a glaring illegality committed in the procedure which is writ large

on the Judgment of the lower court itself.

The question that arises for consideration is, as to whether the conduct of the trial against A-1 by the learned Sessions Judge in his absence (the

accused in fact absconded) is proper and legal.

Before dealing with Section 273 of the Criminal Procedure Code to consider the question referred supra, We deem it most appropriate to refer

to an Article in the Constitution of India and a few rulings of the Supreme Court of India to point out as to how the right of an accused including

one for fair trial has been jealously guarded.

Article 21 of the Constitution reads as follows:-

No person shall be deprived of his life or personal liberty except according to procedure established by law.

A Constitution Bench of the Supreme Court, way back in 1952, in the decision reported in Makhan Singh Tarsikka Vs. The State of Punjab, ,

while dealing with a case arising under Preventive Detention Act (1950), observed as follows:-

It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly

followed and must not be departed from to the disadvantage of the person affected.

[Also see: Naranjan Singh Nathawan Vs. The State of Punjab, ]

In the decision reported in Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, , while considering the scope of Section 561-A

of the Criminal Procedure Code, 1898 the Supreme Court pointed out as under:-

As fair trial is the main objective of the Criminal Procedure, any threat to the continuance of a fair trial must be immediately arrested and the

smooth progress of a fair trial must be ensured ......

In the decision reported in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , the Supreme Court pointed out that

where under-trial prisoners have been in jail for periods longer than the maximum term for which they would have been sentenced, if convicted,

their detention in jail is totally unjustified and in violation of the fundamental right to personal liberty under Article 21 of the Constitution. The

Supreme Court also pointed out the right of a poor accused to have free legal aid. In the course of discussion, the Supreme Court affirmed the

view taken in its earlier decision reported in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , wherein the Court ruled as under:-

When Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is

not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his

life or liberty should be ''reasonable, fair and just.''

In the decision reported in State of Punjab Vs. Baldev Singh, etc. etc., , a Constitution Bench of the Supreme Court, while considering the duty of

an officer, who conducts search u/s 50 of the Narcotic Drugs and Psychotropic Substances Act, ruled as under:-

An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected

in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

Now, let us proceed to consider the relevant provisions in the Criminal Procedure Code.

Section 273 of the Cr.P.C. lays down as under:-

Evidence to be taken in presence of accused.--

Except as otherwise expressly provided, 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.

The Criminal Rules of Practice have been framed in exercise of the powers conferred by Article 227 of the Constitution of India and the relevant

rule for the purpose of the case on hand is Rule-17, which reads as under:-

Cases in which some of the accused have absconded:--

When there are several accused persons in a case, and only some of them have appeared or been produced before the Court, if the Magistrate is

satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused as

have appeared to have the case against them enquired into without delay he shall proceed with the case as against such of the accused as have

dispose of it according to law. As regards the accused who have not appeared he shall give the case a new number and enter it in the register of

cases received, and if it remains pending for a long time and efforts to secure the presence of the accused have failed, and the case against the

accused who have appeared has been disposed of, the Magistrate shall report the whole matter as regards all the accused to the District

Magistrate through the Sub-Divisional Magistrate, if any, and the District Magistrate may direct that the case against the absent accused be

removed to the ""Register of long pending cases""; or if the District Magistrate is of opinion that the case against the absent accused is wholly false,

he may direct that the case be omitted from the register and the returns altogether, provided that he may at any subsequent time order the case to

be entered in the register of long pending cases.

A careful reading of the above provisions would clearly show that the legal position is that all evidence in enquiries and trials should, except as

otherwise expressly provided, be taken in the presence of the accused. The exceptions to this rule are seen in Sections 205, 291, 292, 293, 299

and 317; and for other exceptions to this rule, reference may be made to the provisions of Sections 32 and 33 of the Evidence Act and Section 17

of the Extradition Act. Barring the above exceptions referred supra, the Rule laid down in Section 273 of the Code is imperative that all evidence

should be taken in the presence of the accused. But, it has to be pointed out that the trial of an accused person can be held in his absence, if, at the

request of the accused, his attendance is dispensed with and an Advocate of his choice is representing him during such absence.

Reference to some Rulings of the Courts would help much to understand the scope of the Section and how the Courts have been applying it to

cases to see that there is no threat for fair trial.

In Ratilal Bhanji Mithani v. State of Maharashtra 1971 SCC (Cri) 231 the Supreme Court was dealing with a case arising under Sea Customs

Act, 1878 and Exports and Imports Control Act, 1947 and there was also a charge against the accused u/s 120(b) IPC. In that case, certain

witnesses in Germany had to be examined. The Court directed the prosecution to give facilities in respect of payment of travel charges by air and

foreign exchange at Rs. 100/- as daily allowances to A-1, A-3 to A-5 and A-7. But however, this facility was not extended to the 2nd accused for

some reasons about which we are not very much concerned. The Supreme Court, in that case, ruled that A-2 should be given the same facilities as

afforded to the other accused. While so holding, the Supreme Court ruled as under:-

In every criminal trial the accused is entitled to have the witnesses examined in his presence and if a departure is made and witnesses cannot be

brought here for one reason or the other whether due to the action of the appellant or the inaction or want of diligence on the part of the

prosecution, and they have to be examined on commission beyond the frontiers of this Country it is incumbent upon the prosecution and the Court

in ensuring a fair and impartial trial to afford to the accused the same facilities for employment of a lawyer, the payment of his to and fro air fare to

the place where the Commission will examine witnesses and his daily expenses while he is engaged in the work of the Commission.

The next ruling that can be usefully referred to for the purpose of this case is the one reported in 1993 L.W. Crl. 603 (Subramaniam alias

Valmanickam v. State of Tamil Nadu & another). That was a case where the Designated Court, pending trial of 32 persons for alleged commission

of offences u/s 120-B IPC. and Sections 3(3), 4(1), 5 and 6 of the TADA Act, 1987 and Section 5 of the Explosive Substances Act, passed

orders splitting up the case against A-1 under Rule 17 of the Criminal Rules of Practice. The order of splitting up of the case was without notice to

the accused. A Writ Petition was filed in W.P. No. 17946 of 1993 by one of the accused contending that Rule 17 of the Criminal Rules of

Practice has to be struck down, since u/s 477 Cr.P.C. such a Rule could not have been framed and that even under Article 227 of the Constitution

of India, the High Court has no such Rule-making power. While turning down the plea, the Division Bench observed as under:-

When there are several accused persons in a case, and only some of them have appeared or been produced before the Court, if the Magistrate is

satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused as

have appeared, to have the case against them enquired into without delay, he shall proceed with the case as against such of the accused as have

appeared and dispose it of according to law. That is what exactly has happened in the pending prosecution. A speedy trial, as far as the available

accused, is the object behind such splitting up. Right to speedy trial under Article 21 of the Constitution has been recognised in a catena of

decisions. If this case has not been split up against the non-available accused, it will always be open to the petitioner to contend that his right to

speedy trial gets thwarted.

A Division Bench of the Madhya Pradesh High Court, in the ruling reported in State of Madhya Pradesh Vs. Budhram, has held that recording

of evidence of witnesses in the absence of the accused is illegal and the conviction and sentence have to be set aside. In that case, while recording

the testimonies of PWs-14 to 20, the accused was not produced before Court. But however, the counsel representing the accused informed the

Court that he had no objection if the witnesses in attendance were examined. Even in those circumstances, the Court held thus:

The infirmity pointed out above goes to the root of the matter and the case must be remanded back for re-trial. It is equally a matter of concern

that in such important trials the accused person is not produced before the trial Judge from jail on some pretext or the other. This clearly amounts

to obstructing the course of justice and the constitutional process. ....

In result, we set aside the reference and allow the appeal aforesaid. Appellant''s conviction and sentence of death aforesaid are hereby set aside.

The case is ordered to be sent back immediately to the trial judge for recording the evidence of Bhogilal, Urmilabai, Kamlabai, Kiranbai,

Nandram, Awadhesh Kumar and investigation Officer C.P.Jhariya (P.W.14 to 20 respectively) afresh in presence of the appellant who should be

given full opportunity to cross-examine them. Thereafter the statement of the appellant u/s 313 Cr.P.C. should be re-recorded and if he wants to

adduce evidence in defence the same should be recorded. The case should then be decided afresh.

Way back in 1934, Justice Walsh, in (Thalanki) Nagayya and Another Vs. Thommandra Yerrikalappa, ruled that the accused cannot be

committed to Sessions by simply framing an amended charge, where the evidence against each of them has been given in the absence of the other

and that a commitment based on evidence recorded in the absence of the accused is illegal.

{Also refer:-

1975 Crl.L.J. 1402 (Ram Shankar v. State of Bihar)

Mrityunjoy Chatterjee and Others Vs. The State,

A learned single Judge of the Karnataka High Court, in State of Mysore v. Kariappa and another (1973 MLJ Crl. 156) ruled that the fact that

the accused persons or their counsel have consented, for clubbing of two criminal cases together and evidence recorded in one to be treated as

evidence in the other is a serious departure from the usual and proper course. The learned single Judge further ruled that there can be no legal

sanction for such a course and it is a well established principle of criminal law that a prisoner can consent to nothing.

In Sukanraj Vs. State of Rajasthan, , a learned single Judge, following the ruling reported in AIR 1928 Lahore 34 (Mohammed Khan v.

Emperor), ruled that the words ""shall be taken in the presence of the accused"" would not mean mere physical presence of the accused and that

such accused must be given all opportunities to defend himself by testing the veracity of the witnesses through cross examination. The Court further

held that recording of copies of statements of witnesses in one case as evidence in another case, without examining the witness, is illegal and vitiates

the trial and is not curable.

To the same effect, the Lahore High Court held in the decision reported in AIR 1924 Lahore 17 (J.T. Lyme v. Crown). It was a case where the

recorded statement of the evidence by a witness at the first hearing was read out to him and then some further questions were put to the witness

and he was tendered for cross examination and in fact, some witnesses were not even sworn. The Court held that this method of presenting the

evidence for the prosecution is not only irregular but entirely illegal and the defect is not curable.

A question may arise as to what is to be done if one of the accused refuses to participate in the trial and is persistently disturbing the court

proceedings by wilful abstention and procrastination. A learned single Judge of this Court ruled that the Court is entitled to proceed with the trial so

far as the other accused are concerned, in the decision reported in 1994-2-L.W. (Crl.) 784 (Deputy Superintendent of Police, Crime Branch,

C.I.D., Madras v. Thiru.M.Karunanithi, Madras). In that case, the accused (A.4) made it clear to the Court that he is not participating in the trial

and also not engaging a counsel of his own to defend him. In fact, he had refused to receive even the copies of the documents and declined to avail

the services of an amicus curiae. In those circumstances, the Court ruled as under:-

For all these reasons, I am satisfied that this is an eminently fit case for proceeding with the trial of the case in the absence of the respondent/4th

accused. In this connection, it may be stated that the very object of Section 273 of the Criminal Procedure Code is to provide the maximum

opportunity for an accused for a fair trial to defend himself in a criminal case. In this case, the respondent has waived that right by his persistent

conduct.

The result is, the trial Court is directed to proceed with the trial of the case in the absence of the respondent (4th accused) and dispose it of

according to law.

Thus, it can be well said that the legal position is that if an accused is absconding, then, the case has to be split up and the trial has to be

proceeded only against the other accused. The splitting up of the case can be done either on the application made by the prosecution or suomotu

by the Court.

We are pained to see that in spite of the fact that the legal position on this aspect had been settled long back, the learned Additional District

and Sessions Judge has not followed the proper procedure. That being so, this Court has no other option except to set aside the conviction and

sentence so far as A-1 is concerned. But however, that does not mean A.1 can escape from the clutches of law. Right now, A-1 is in custody.

Considering his previous history, it would not be safe to release him on bail. We make it clear that bail application if any filed by A-1, shall not be

entertained. A fresh trial shall go on as against A-1 as per the provisions of the Act. We deem it necessary to give a direction to the trial court at

Salem to complete the trial within a period of two months from the date of receipt of copy of this Judgment and records.

The present Appeal filed, questioning the correctness of the judgment of the learned Additional District and Sessions Judge (Fast Track Court

No. 1), Salem, is admitted only in respect A-3 and A-4.

The conviction and sentence of A-1 is hereby set aside and there shall be a fresh trial so far as he is concerned. The trial shall be completed

within the time schedule as fixed.

Since the Additional District and Sessions Judge (Fast Track Court-I), Salem has already decided the case against all the appellants inclusive

of A-1 by convicting them, we feel that a fresh trial of A-1 is to be conducted by any other Judge preferably by Principal Sessions Judge or I

Additional Sessions Judge.