Madras High Court: N. Anand Venkatesh, J., issued guidelines pertaining to deal with cases wherein accused persons are absconded leading to the pendency of cases in subordinate courts.
Pendency of cases
Petitioners Counsel submitted that an FIR was registered and final report for the same was taken by the lower Court for offence under Sections 147, 148, 341, 302 of Penal Code, 1860. Further, It was stated that since some of the accused persons were absconding, the case was being kept pending for the last 8 years without being committed to the appropriate Court.
Adding to the above, Counsel also stated that the petitioner was aged about 70 years, but no progress in the lower Court took place, instead of splitting up the case, it kept on being adjourned on the ground that the accused persons were not present or that the non-bailable warrant was pending.
Analysis and Decision
Accused Persons Absconding
Court noted the fact that several petitions have been filed before the Court wherein case have been kept pending in light of certain accused persons being absconding and subordinate Courts finding the said issue have been finding the same to be a hurdle while dealing with the cases.
The above-stated issue leads to the pendency of the case.
Hence, the Court found this to be the right time to issue certain guidelines for the Court below to deal with the cases in which accused persons have been absconding.
Criminal Rules of practice and Circular Orders, 1958 provides for dealing with cases where the accused persons have absconded.
Guidelines
Guidelines to be kept in mind while dealing with cases of absconding accused:
- Where the Court has issued process for the appearance of an accused and the same could not be served and if the Court is satisfied that the accused is in absconding, the Court may, after having waited for a reasonable time, proceed under Section 82 of the CrPC.
- If the case involves a single accused against whom proceedings have been initiated under Section 82 of the Code, the Court shall shift the case from relevant register to the register of long-pending cases.
- When there are several accused persons in a case and only some of them have appeared or have been produced before the Court and if the Court 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 in attendance to have the case against them enquired into or tried without delay, the Court may split up the case if it is satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused in attendance and proceed with the enquiry or trial as regards the accused who are in attendance.
- While splitting up the case as referred, the Court shall assign a fresh number to the split-up case relating to the absconding accused and enter the same in the relevant register of the current year.
- In a case exclusively triable by Sessions Court, when there are several accused persons and only some of them have appeared or have been produced before the Court, the Magistrate Court shall follow the same procedure mutatis mutandis till the stage of splitting up of case.
- Magistrate Court shall thereafter comply with the provisions of Section 207 or Section 208, as the case may be, insofar as the accused in attendance and commit the case to the Court of Session.
- Sessions Court shall be reported about the split-up of the case and the Sessions Court shall assign a number to the split-up case, enter the same in the sessions Register and communicate the number to the Magistrate Court forthwith. The Magistrate Court shall also indicate this number in brackets along with the fresh number assigned to the split-up case relating to the absconding accused.
- As and when the absconding accused appears and is produced before the Magistrate Court, the Magistrate Court shall comply with clause (vi) and while committing the case to the Court of Session shall indicate the number assigned by the Sessions Court for the split up the case.
- Clauses (i) to (vii) above shall apply, as far as may be to cases where an accused person has appeared but has subsequently absconded.
- If the accused has absconded after committal of the case, the Sessions Judge shall follow the same procedure under clauses (ii) to (iv).
Practice provisions of Section 299 CrPC
High Court also stressed upon the need to put in practice the provisions of Section 299 CrPC by the trial courts which deals with recording of evidence in the absence of accused.
- Record the order which proves that the accused has absconded and there is no immediate prospect of his arrest.
- Depositions of prosecution witnesses may be recorded and attest and file the same in the split-up case for the purpose of furnishing it to the absconded accused as and when they appear.
- The above-stated deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged, provided that the witness is either dead or he is incapable of giving evidence or his attendance would cause unreasonable delay, expense or inconvenience.[Exception to the principle embodied in Section 33 of Evidence Act.]
- The evidence which is recorded against an absconded accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presence, on the fulfilment of the above-said conditions.
Supreme Court’s decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 and Jayendra Vishnu v. State of Maharashtra, (2009) 7 SCC 104 were referred.
The above-stated Judgments were referred to as the said decisions provide a very clear picture on the ambit and scope of Section 299 CrPC.
High Court directed the Court below to follow the above guidelines and proceed further immediately to ensure that the accused is committed to the appropriate Court, as expeditiously as possible. [H. Aarun Basha v. State, 2018 SCC OnLine Mad 12845, decided on 19-12-2018]
Advocates who appeared in the instant matter:
For Petitioner: Mr M.Babu Muthu Meeran
For Respondent: Mr M.Mohamed Riyaz, Additional Public Prosecutor