State of Mysore vs Sanjeeva

Sreenivasa Rau, J.—This reference is by the learned Sessions Judge, Shimoga Division, u/s 438, Code of Criminal Procedure, lord quashing the committal by the learned I and Magistrate, Chital drug of Accused 1, Sanjeeva Naika, in C C. 236/54 to take his trial in the Court of session lord an offence punishable u/s 302, I. P. C. along with four others who had already been committed lord an offence u/s 302 read with Section 114, I.P.C. in connection with the same occurrence, i.e. the alleged murder of one Papanna Reddy of Maradihalli a I: Gaudily village, Miriyur Taluk, on.

The circumstances giving rise of the reference are as follows:

The abovementioned Sanjeeva Naika and four other were charged by the Miriyur Police will the murder of Papanna Roddy & a charge-sheet was presented to the Court of the Lind Magistrate, Chitaldrug, on 26-2-54.'' The case was registered as C.C, 236/54. The said Sanjeeva Naika and another accused, A-2, were stated to be absconding. The other three accused were produced in custody. The learned Magistrate directed the issue of proclaim I tins against A-1 and A-2 on 11-3-54. Accused 2 Hepialid, however, surrendered before Court on 18-3-54. Proclamation in regard to accused 1 Santee Naira was again ordered and duly published.

On 19-5-54 the prosecution prayed for a further adjournment to trace accused 1. The Court refused it on the ground that the other accused were incarcerated in the jail awaiting inquiry for over three months and that if accused 1 was traced he could be proceeded against according to law. The It''s was ad journal to 26-3-54. On that day the prosecution filed a memo praying that Use evidence of witnesses to be examined in the case may be ideated as one u/s 512, Code of Criminal Procedure, in respect of the absconding accused. The learned Magistrate made a note as follows:

There is sufficient material to prove that the accused Santee Naika has absconded and that I there is no immediate prospect of arresting him. The prosecution version is that he is the principal of-u rider. There appears to be no possibility of apprehending the .fugitive in the near future. Hence record the evidence u/s 512, Code of Criminal Procedure, to be used against A-1 if and when he is traced.

The witnesses produced by the prosecution I were accordingly examined on that day and on subsequent dates of hearing. Eventually on 2-5-54 the learned Magistrate committed A-2 to A-5 to take their trial before the Court of session for an offence u/s 302 read with Section 114, I, P. C.

On 15-10-54 accused 1 Sanjeeva Naika was Jounced in custody before that Court which was of that day temporarily in charge of the First Magistrate, Chitaldrug, who remanded him'' to judicial look-up till the next day. On 16-10-54 the learned Second Magistrate made an order as follows:

The case against the accused which was'' struck of; since he was reported to be absconding is restored to file. The accused with four other persons was charged with murder by die Police of Martyr. The: accused Sanjeeva had absconded at the time of preliminary inquiry and his alleged associates were . committed to Sessions in C. C. No. 236/54 on the file of this Court.

The evidence taken by me against the co-accused could not be treated as evidence against the absconding (accused) and as the accused Sanjeeva was not a party to the proceedings and had no opportunity to cross-examine. There are also decisions chat the accused should be given opportunity to cross-examine witnesses and the Magistrate can act upon the evidence on record.

The accused was produced before Court or, several other subsequent dates and on 30-10-54 the Prosecutor submitted a list of witnesses purporting of be in addition to the witnesses ailed examined u/s 512, Code of Criminal Procedure, and submitted that the accused may be committed for trial on the evidence on record and after examining "additional witnesses pertaining to his complicity'''', Arguments were heard on that day and orders were pronounced on 2-11-54. The order sheet of down day contains the following entries:

I propose to commit the accused on the strangle of evidence on record, for reasons to be slated in (In order I mil going to make committing the accused for trial.

Accused examined.

The evidence against the accused explained to him, Arguments heard....

The prosecutor filed an application at the time of arguments that he proposed lo examine addition witnesses. The question of examination of additional witnesses does not arise since 1 have coquetted the accused on die evidence on record.

In the order of committal, the learned Magistrate considered the question whether Accused 1 who was not a party to the previous proceeding; could be committed merely on the strength of the evidence recorded or die prosecution witnesses should be recalled so as to afford an opportunity to A-1 to cross-examine them. He stated that it had been proved to his satisfaction that the accused had absconded, that there was no immediate prospect of arresting him and that therefore evidence was recorded u/s 512, Code of Criminal Procedure, against him.

After referring to his refusal of further adjournment prayed for by the prosecution on 19-5-54 to trace A-1 on the ground mat the prayer was unreasonable and to his order of 25-5-54 that the evidence against the absconding accused was being recorded u/s 512, Code of Criminal Procedure, the learned Magistrate proceeded to say that all the available evidence against the second persons was placed on record and the evidence was tested in cross-examination by three senior Counsel, that A-1 was undefended, that I here being no provision to appoint a Standing Counsel in committal proceedings, it was meaningless to record the same evidence as a mechanical formality and that: the occurrence having taken place more than eight months ago, there was no justification to summon again a large number of witnesses who had been examined thereby causing more delay in the trial and considerable inconvenience to the parties.

After considering the evidence as recorded by him, he concluded that the material justified the framing of a charge against Accused 1 u/s 302 I. P. C. and committed him to take his rail in the Court of Session. He accordingly committed the accuse.

In his reference, the learned Sessions Judges joins that u/s 512 Code of Criminal Procedure, it was a condition precedent that the absconding of the accused must be proved as also that his presence could not be secured in the near future. In his view theses facts'' had not been proved as no evidence bearing on the matter had been recorded. lie refers to thy request made by the prosecution on 19-5-54 for a further adjournment specifically on the ground that they wanted to trace Accused 1 and says that this itself shows that the stage had not been reached for holding that: Accused 1 was absconding.

He considers the other reasons given by the learned Magistrate as not germane to the matter at al. He thinks that the learned Magistrate has considered only the delay likely to be caused in the proceedings and has not bestowed his attention on the fact that the witnesses were presumably available for examination. He then refers to the list of additional witnesses filed by the prosecution and says that it was incumbent u/s 208, Code of Criminal Procedure, upon the learned Magistrate to examine all the witnesses before ho came to a decision on the question of canonical and that the omission Lo examine them was an illegality.

Taking therefore the view that the non-observance of the provisions contained under Sections 208 and 512 Code of Criminal Procedure, was each of them in itself enough to render the committer''s illegal he has submitted the lemons for appropriate orders by this Court. Both the (Joints below have referred to a number of deiced eases in their respective orders.

The main questions for consideration are whether the requirements of Section 512 Code of Criminal Procedure, under which the evidence purports to have been recorded by the Magistrate have been fulfilled as the committal is based entirely on such evidence and whether the committal is maintainable when the Magistrate did not examine all the witnesses as were cited by the prosecution.

The basic rule in regard to evidence taken before the Court in judicial proceedings is that it must be taken in the presence of the parties to the proceedings. This is even more emphatically of fundamental importance in criminal trials and Section 353 Code of Criminal Procedure, provides that all evidence shall be taken in the presence of the accused or in the presence of his pleader when his personal attendance is dispensed with.

This is, of course, subject to statutory exceptions. As they are exceptions to a fundamental rule they are to be strictly complied with. Such exceptions are provided only where the Legislature has thought that the interests of justice require such evidence being made available, and after making provision for ensuring that such evidence approaches to the maximum degree possible the standard of evidence adduced in the presence of parties.

Sections 32 and 33 of the Evidence Act are instances of such exceptions. Section 32 relates to previous statements and the categories under it are of such a character that the circumstances under which (hose statements arc made almost automatically the truth of those statements, as, for declarations or statements against one''s pecuniary or proprietary interests.

Similarly, in regard to Section 33, the corded in previous proceedings can be evidence re-tendered m a later stage of the same proceeding only if the prior proceeding is between the same parties and relates substantially to the same questions in issue and the party affected by such proceedings has had the right and opportunity to cross-examine.

Even under these two sections, such evidence cannot be tendered if the person .concerned is available for examination as a witness. It is to be noticed that u/s 33, Evidence Act, it is. only evidence like in the presence of a parley or his representative that could be made use of in the later stages.

Section 512, Code of Criminal Procedure is also an exception such as is contemplated u/s 353, Code of Criminal Procedure. It occurs in the Chapter on Special Rules of evidence, The first part of the section provides for recording the depositions of witnesses produced on behalf of the prosecution in the absence of the accused when the accused has absconded. The second put provides for such recording in cases where the accused is not known, but further delimits the scope and Acquires the prior order of the High Court. In this case, we are only concerned with the first part.

The object of the section is to obtain and preserve valuable evidence in regard to an of once so that the interests of justice may not suffer when the accused is found and put on trial alter long delay because in the interval the evidence may have ceased to be available. If the material was not so secured, it might in many instances not be possible to bring home the offence to malefactors at all and that would result in the latter taking advantage of their own successful evasion of the process of Court and the cause of justice would suffer.

The Legislature has therefore thought it proper to provide this express exception to the general rule u/s 353, Code of Criminal Procedure. It will be noticed that while Section 22 of the Evidence Act provides for the use of evidence taken in previous proceedings in the presence of the party affected and when he had a right and opportunity for cross-examination, Section 512 enables evidence to be recorded in the accuser''s absence for later use. Thus, as observed by Ven-kataramana Rao, in - "Emperor v. Labbai Kuhi AIR 1939 Mad 190 (A), Section 512, Code of Criminal Procedure, represents no exemption to the provisions of Section 33 of the Evidence Act which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can be made use of. It is hardly necessary to say that in these circumstances, the conditions which are required to be fulfilled u/s 512 Code of Criminal Procedure have to be strictly construed.

The conditions pertain both to the recording of depositions and to the use of .the depositions later on in the proceedings taken on the arrest of the absconder. The conditions pertaining to the recording are that it must be the se-'' cured person has absconded and that there is no immediate prospect of'' arresting him. The conditions relating to the use of such depositions in a later trial or inquiry after the accused is arrested are, broadly speaking, the same as those under Sections 32 and 33 of the Evidence Act i. e. the no availability of the deponent on account of the death or incapacity to give evidence or'' impossibility of procuring his attendance without unreasonable delay, expense or inconvenience.

As regards the; conditions under which the depositions can be recorded they have been the subject-matter of consideration in a series of decisions.

Ghurbin Bind v. Queen Empress'' 10 Cal 1007 (13) was a case in which the absconding accused was later on brought to trial and convicted on the basis of evidence including the deposition of a witness examined before the Committing Magistrate''s Court. The learned Sessions Judge who tried the ease admitted the evidence as coming u/s 33, Evidence Act and also u/s 512, Code of Criminal Procedure. The Calcutta High Court while holding that it could not possibly come u/s 33, Evidence Act, as it was not recorded in the presence of., the prisoner held that it would be admissible u/s 512, Code of Criminal Procedure, only if its provisions laid been complied with.

According to that, the section requires that the absconding of the accused should be lashed before the deposition is recorded, As those_ requirements had not Indict) they held that the deposition was in admissible in evidence against the accused. In - ''Queen Empress v. Ishri Sinuh'' 8 All 672 (C), the High Court held that the depositions given before the committing Magistrate against the absconding accused were admissible in evidence u/s 512, Code of Criminal Procedure in the trial of the accused.

It is not clear from the report, whether lie Magistrate purported to act u/s 512 in, recording the depositions. The High Court found that the Magistrate had recorded that ''die accused an absconder. From the trend of the judgment) it would appear that the Magistrate had not recorded that the condition satisfied be-lor.1 recording deposit ions"; but that die High Court itself on an of all the to the conclusion that the conditions of Section 512 were satisfied.

It would therefore appear that in the High Court''s view, it was open to make use of such depositions it the stage of trial it was found that the conditions of Section 512, Code of Criminal Procedure, were satisfied and taut it was not necessary, even if there was no indication that the recording Magistrate had felt satisfied about the of loose conditions. The provisions of Section 512, Code of Criminal Procedure, came up for consideration before the same Court and the same learned Indices in the ease replica in ''Kmpross v. Makind 1890 All WN 100 (D)

That was a case in which the accused had been u/s 193 Code of Criminal Procedure, for giving evidence In proceeding u/s 512 Code of Criminal Procedure. The learned Judges held that it was only if it was proved that (1) the accused had absconded and (2) that there was no immediate prospect of arresting him, evidence could be legally taken u/s 512, Code of Criminal Procedure. They stated that the facts must proved by legal and not merely by report of the Police unless that report was given the shape of evidence before the Magistrate.

They observed that the section had nothing to with the taking fairies and trials. of evidence taking the general to have evidencing, This was strictly construed inky for the issue that (he section had nothing to of evidence generally as in Section 512 was a special rule n direct and distinct departure rule that the accused are entitled given in their presence and hear-stating departure and must be strictly construed. In Section 87, Code of Criminal Procedure, providing for the issue of a providing for the issue of a warrant of arrest under certain circumstances, the terms used were if a court has reason to believe" and in Section 87 the words were added whether after taking evidence or not.

But in Section 512 the words used were if it proved. This means proved by evidence upon which a Court could legally and properly act. On the facts of the ease they held that it had not been proved that the person then accused had absconded of that there was no immediate prospect of arresting him and that therefore it was not a proceeding in which evidence was or could be legally taken. They also drew attention to the fact that Section 512,. Code of Criminal Procedure, of (1882?) was very different in terms and distinct departure from Section 1327 of the old Code (i. e. of. 1872).

It may be mentioned in this connection that the Code of 1861 contained no corresponding provision, Section 27 of the Code of 1872 read as follows:

In an accused person absconds, and after due pursuit cannot be arrested, any Court competent to ''try or commit such accused person for trial for ; the alienee complained of, may, in his absence, , record the statements of the persons acquainted with, are facts; and such depositions may, on the surest of such person, be put in on his trial for such offence, if it is not practicable to procure the attendance or such witnesses.

It will be noticed that the wording of Section 2(1), Code of Criminal Procedure, 1882, is more precise and stringent both in regard to the conditions to be satisfied before tire recording of depositions and as regards .heir use. In other wards, it was held that as the (eruditions necessary for exercising the jurisdiction u/s 512 had not been satisfied, the de- positions recorded could not be regarded as evidence taken in a judicial proceeding and the conviction u/s 193, I. P. C. could not be sustained.

In ''Bhagwali v. Emperor" All 1918 All 00 (E), previous depositions recorded u/s 512, Code of Criminal Procedure, were made use of at the trial, Thu recording Magistrate had found that the accused had absconded but no express finding had been given that there was no immediate prospect of arresting the accused. The High Court took the view that while it was certainly advisable that the Magistrate should recite in his order that the accused was absconding, and that there was no immediate prospect of his arrest, tile was that the Magistrate did his duty and did not record the evidence u/s 512, code of Criminal Procedure, unlawfully," and that hence the failure to record a finding that there was no sod''s arrest did viol inadmissible. mediate prospect of render the evidence inadmissible.

The Appellant''s Counsel relied on an earlier decision of the same High Court reported in ''Hiislanl y, Kuiperor'' AIR 1945 All 444 whether it was held that the Court which record eliding u/s 512, Code of Criminal Procedure must first of all record an order that in its proved that the accused had absconded and that there was no immediate prospect of his arrest. In this case, the murder was committed on c-12-1897.

Evidence purporting to be u/s 512 Code of Criminal Procedure, was recorded on 24-12-1897. The proceedings discovered to be incomplete in 1898, proclamation u/s 87 of the Code of Criminal Procedure was issued and also a warrant for the arrest of then absconding accused. A police con-''stable gave evidence of having failed to find the accused after making a search. Witnesses who hat: been examined in 1897 were examined again.

The proceedings were apparently left plete again because the matter was once again t up by the Prosecuting Inspector in 1911. Fresh proceedings were started on his suggestion and forma! evidence of the accused''s absconding'' was recorded. At the trial, the Sessions Judge took on record the depositions of 1897. The depositions of 1995'' were also taken into consideration by him though No. order appeared on the file showing how arid when those statements were brought on record. The accused was convicted on the statements of the witnesses recorded in 1897. The High Court as mentioned above held that as the recording of deposition; of 1897 was riot preceded by a finding that the conditions mentioned in Section 512, Code of Criminal Procedure, had been satisfied, that evidence was inadmissible. As regards the depositions taken in 1898 the evidence, of the police constable examined in 1898 did not disclose that there was no immediate prospect of the arrest of the accused nor was there any finding by the Magistrate that he was satisfied that the accused was .absconding and that there was no immediate prospect of his arrest.

The High Court however considered those depositions also, But this was only to find out whether there was any ground for ordering a retrial, in the later Allahabad case viz., - ''AIR 1918 All 30 (E), this decision was distinguished on the ground that the learned Judges had, after going through the previous records, came to the conclusion that there was no evidence from which the Magistrate could'' draw; to Terence that .the.(accused there was no of his arrest, (and that in ;the case which they were dealing there was evidence to justify a reasonable inference both in regard to the absconding of the accused and the absence of an immediate prospect of his arrest.

They however do not explicitly deal with the observation in the previous Allahabad decision die Court recording the depositions must, first all, record an order that in its opinion, both the conditions have been established. They content them- '' selves with saying that the section nowhere requires that the Magistrate must give a finding. In the case reported in - ''Daya Ram v. Emperor'' AIR 1926 Lah 83 (G), the Lahore High Court appears to adopt the view taken in - ''AIR 1918 All 30 (IS). The deposition of one of the witnesses recorded u/s 512, Code of Criminal Procedure was relied on for convicting the Appellant.

No finding had been given by the recording Magistrate that the accused had absconded and that there was no immediate prospect of arresting'' him. The Appellant''s Counsel relied on - ''Ramdial v. Emperor'' AIR 1914 All 249 (II), but the learned Judges of the Lahore High Court thought it unnecessary to consider that decision as the same High Court has taken a different view in - Bhagwati Vs. Emperor, ''.

They found that the recording Magistrate took the statements of two constables who had searched for the accused and had not been able to find him afforded the proof that was required and the fact that a proclamation die accused u/s 87 Code of Criminal Procedure, had been issued would show that the Magistrate was with the proof.

This would indicate that in the view of the learned Judges an explicit finding by the Magistrate was not necessary and that it was open to the High Court or the appellate Court to. satisfy itself whether conditions u/s 512, had been fulfilled. In - ''Karam Singh v. Emperor'' AIR 1941 Lah 361. (I): it was contended on behalf of the Appellant that the only evidence let in before the Magistrate who recorded the statement u/s 512, Code of Criminal Procedure, was that of a police constable did not personally know the Appellant and therefore could not have conducted or did not at any rate in act conduct an effective search.

The Magistrate made an order that he was satisfied that the Appellant was intentionally absenting and that there was no hope his being, arrested soon. The High Court observed:

When the Magistrate is so satisfied on evidence recorded by him, the sufficiency of the evidence satisfying him cannot be agitated or questioned when the accused person is later brought to trial. less can it be questioned at a later stage when the accused person after trial is conversed and an a peal preferred from the order of conviction.

This is view expressed in this decision, the of the eroding Magistrate is coalesce ; ml cannot challenged either in the trial Court in the appellate Court, (n - ''Mitnbndh v. Emperor'' AIR 1944 Mag 274 (J), however, a different view is taken and if is held that, not only should the Court recording the depositions !. satisfied about: the fluffiest of the conditions but that the Court trying the case must also be subsequently satisfied that Section 512, Code of criminal Procedure, was ''(implied with from which it necessarily follows the matter could be canvassed in the appellate Court also.

As regards ''he basis on which die record- in the absence of a definite nig Court is to be satisfied of the fulfillment of the lions u/s 512 Code of Criminal Procedure, are satisfied, as pointed conditions i. e, that the accused was absconding and it out in - ''Sheoraj Singh v. Emperor'', AIR 1920'' All that there was-no immediate prospect, of his arrest, 340 (L), the mind of the Court and of the Counsel it is seen from the wording of Section 512 Code of Criminal Procedure, that for the prosecution at the time when such witnesses so conditions have to be ''proved''. It has no- would be giving their evidence In the box would fording been field that the facts must be proved, not be directed at nil to the question of: the guilt by legal evidence and not merely by the report of or otherwise of the absconding prevision and many .

The question also, arises as to what constitutes absconding. The word ''absconder'' is act defined in the Code of Criminal Procedure It occurs in other provisions criminal law e. g. Sections 87 and 90(a) Code of Criminal Procedure, and Section 172 I.P.C. From, the context and object of these provisions" an absconder may be said to be one who intentionally makes himself inaccessible to the processes of law Hence it is not enough if it is shown that possible to trace him soon after the occurrence.

It has also to be established that he was avail-'' able at or about the time of the Commission of the) alleged offence and ceased to be available after to commission of the offence, before ho can be treated as an absconder. Similarly, it has to be established'' that there is no immediate prospect of arresting the) accused. Then the question arises whether it is1 enough if the material on record., shows that .these condition: have been fulfilled or whether is nessesary that the recording Court should explicitly state that it has so satisfied itself before the deposition is actually recorded.

It has already been seen that while AIR 1918 All (10) (E) and AIR 1926 Lah 83 (G) take the view that no express finding is necessary 10 Cal 1097 ( 1890 All W. N. 100 (D) and AIR 1915 All 411 (F) take a different view and hold that the recording of such finding is a condition precedent and it is such a finding that invests the Court, with the jurisdiction to record the depositions.

This aspect of the matter has received detailed consideration in AIR 1944 NaiJ 224 (J) (already referred to) in which Judge.'' state that the mere recording of the evidence would not indicate that absconding was proved having in view the definition of ''proved'' in Section 3 of the Evidence Act and they expressly dissent from the view expressed J) AIR 1918 All GO (II) and AIR 1926 Lah 8-3 (G)

It appears to us that the latter view viz. that the recording Court should make a record of its finding that .the...accused person has absconded and that there is no immediate prospect of arresting especial to invest the is correct. It is beyond doubt that Section 512 Code of Criminal Procedure, the proof of these facts. Obviously, the proof must be to the satisfaction of the Court that proceeds to avoid the depositions.

The only way in which such satisfaction can be indicated by a Court is by recording its finding. That is the only way in which it can be safely presumed that flu: mind of the Court and of the Counsel for the prosecution is directed towards the obey'' of the recording of such depositions.

Section 512, as mentioned above, is aimed at preserving valuable evidence which may later on cease to be available and the recording of depositions under that .section may not necessarily be m the course of any other enquiry or (rail. In fact, some of the decisions mentioned abele relate to the case of a single accused, and the depositions were recorded solely with the object of later use after the absconding accused was arrested, But it comes into use when some accused are absconding and the remaining ones are being proceeded against.

In such circumstances, it is quite possible that the absence of a definite finding that the which ought to be asked might be mid a questions in cross-examination asked by the order accused w 10 are on their or by their Counsel with the express purpose of throwing full upon die absent party might extract from such witnesses statements very prejudicial to the absent party which would not be permitted if the witnesses were using properly examined u/s 512 Code of Criminal Procedure.

While it is not the law that for purposes of being used u/s 512 Code of Criminal Procedure the depositions of witnesses must be recorded in separate proceedings and it will silted if at the commencement of the hourly against (he oilier accused the Court lakes evidence and gives a landing that the conditions in respect of taking depositions against the absconding used are satisfied and then proceeds to examine the witnesses, the absence of such a finding will clearly militate against die interests of the absconding accused.

This is clearly against the policy of the law. an ''ex post lacto'' lauding by the Court of dial or the appellate Court that cither of them is satisfied about the conditions being fulfilled would ''be of no avail. The position would be the same whether these Court spelt out the conditions from the material corning on the record before the depositions are taken or from the depositions themselves ether evidence adduced ''after'' the depositions are commenced to be taken.

in the case on hand it is seen that as the Police were not able to secure accused 1 and 2 the learned Magistrate directed a proclamation to issue u/s 7, Code of Criminal Procedure, against them on 11-3-5-1. Accused 2 surrendered before Court on 18-3-1951. Proclamation was again directed against Accused 1 on 24-3-1954, and was returned alive due publication on 25-4-1954.

On 19-5-54 the prosecution prayed for further adjournment to trace Accused 1. This was refused on the ground that the other accused were in custody and had been awaiting the inquiry for over three months. The learned Magistrate ordered that the inquiry would begin on the next date of hearing, While he was perfectly in order in doing so, it is char that according to the prosecution there was styli a possibility of tracing Accused 1.

On 25-5-54, the Prosecutor filed a memo praying that the evidence of witnesses to be examined in the case may on the arrest of Accused 1 be taken agonist Accused 1 also. Nothing was mentioned by him as to whether any further efforts were made by the Police to trace Accused 1. Nevertheless, the learned Magistrate noted that there was sufficient material to prove that Accused one had absconded and that there was no immediate prospect of arresting him, and that he would record evidence u/s 512 Code of Criminal Procedure, to be used against Accused 1 if and when he was traced.

It is thus seen that there was no legal proof other of the fact diet the accuse 1 had absconded of that there was no immediate prospect of arresting him, for the learned Magistrate''s recital that there was sufficient material to prove the said facts has no basis whatever. The only material he could have had was an assertion or a representation by tire pro-student, the publication in the Police Gazette that digressed was absconding and the issue of the proclamation.

These did not constitute legal proof. The mere fact that he recorded such a finding in die absence of any legal evidence whatever would not invest him the power to record the depositions u/s 512 Code of Criminal Procedure against the absent accused. Indeed, ''he learned Magistrate, seems to have realized this, for in the entry dated 15-10-1954 in the order sheet, after the arrest of Accused 1 he states:

Tin evidence taken by me against the co-accused could not be treated as evidence against the absconding and as accused Sanjecva was not a party to the proceedings and had no opportunity to cross-examine.

Nevertheless, on the submission made by the Prosecutor on 30-10-1954 that the accused might be committed for trial on the evidence on record, the learned Magistrate passed the order of committal on 2-11-1954.

The learned Magistrate in the course of his order of committal supports his relying on the depositions recorded by him on the ground that ho was satisfied that the accused was absconding and that there was no immediate prospect of apprehending him, This has been found to be without any basis, lie also gives as an additional reason that all evidence recorded against the accused persons who were committed for trial was also evidence against accused J and it. was tested in cross-examination by senior Counsel. Not only would such cross-examination not be the same thing as . cross-examination by or on behalf of accused 1, but it might even tend to prejudice him as already, remarked above. The other reason given by the learned Magistrate is that accused 1 was undefended and that there being no provision for appointing a Standing Counsel it would be a meaningless formality to record mechanically the same depositions. This indicates that the learned Magistrate has not bestowed attention either upon the requirements or the object of Section 512 Code of Criminal Procedure, The recording of evidence in the presence of the accused would not be a meaningless formality even if he were not represented by Counsel, ft was a very important right which ho had and which could not be denied to him, except in breach of a fundamental rule of all trials and particularly of Section 353 Code of Criminal Procedure. The last reason given by the learned Magistrate is that several months had elapsed since the date of the occurrence, that a large number of witnesses had to be examined again and that this would cause more delay in the trial of the case apart from considerable inconvenience to the parties. It is true that there would be further delay and inconvenience. While these arc; unfortunate factors they would not justify the omission of an inquiry and treating as evidence depositions recorded contrary to the provisions of Section 512 Code of Criminal Procedure.

As regards the conditions under which the depositions recorded u/s 512(a) Code of Criminal Procedure, could be used, .the learned Magistrate has paid no regard to the later part of the Sub-section. The depositions could be used after the arrest of the absconding accused only if the deponents were dead or incapable, of giving evidence or if acne could not be secured without unreasonable delay, expense or inconvenience, In tin''s ease, the witnesses wore, inhabitants of neighboring villages and had been actually examined only about two months previously. Further, they were to be examined as witnesses in the Sessions Court at the trial of the other accused. Even on this ground the committal of accused 1 on the basis of these depositions is illegal.

As regards the failure of the learned Magistrate to examine additional witnesses, the learned Sessions Judge in the course of his reference says that it was incumbent upon him to examine these witnesses since Section 208 Code of Criminal Procedure makes it obligatory on the committing Court to take all such evidence as may be produced in support of the prosecution. This matter has been considered in the case reported In Re Nanjappa 501 Mys. T.C.R 364 (M). in which it is held that a committal, without the wiumiimlion of all the witnesses produced by the prosecution is illegal. It will be noticed that in the present case the additional witnesses were to speak specifically to the part played by accused 1 in the occurrence. The Prosecutor submitted a list of those witnesses on 30-10-1954, presumably as a result of further investigation alter the arrest of the absconding accused and requested that they may be examined by the Magistrate. lie renewed the application for their examination, on 2-11-1954. On this the learned Magistrate took the view that tire question of examining additional witnesses did not arise since he had committed the accused on the evidence on record. It is clear .that the non-examination of the witnesses was totally unjustified and that the committal, was vitiated on this amount also.

We, therefore accept the reference made by the learned Sessions Judge and quash the order dated 2-11-1954 of the learned Second Magistrate, Chitaldrug, committing accused 1 Sanjeeva Naika to take his trial in the Court of Session for an offence u/s 302 I.P.C. and direct the learned Magistrate to make an inquiry into the case of accused 1. Meanwhile, the trial of the other accused who have been committed to the Court of Session shall proceed.