Case title:
Kader Khan v. State of West Bengal
Date of Order:
May 06, 2022
Bench:
Justice Bivas Pattanayak
Justice Joymalya Bagchi
Parties:
Petitioner – Kader Khan
Respondent – State of West Bengal
SUBJECT
In this case, the Petitioner had approached the Hon’ble Calcutta High Court for challenging the order of the Trial Court, that had allowed the application of the State for retrospectively reading the evidence of a deceased rape victim, recorded in an earlier proceeding, into evidence against the Petitioner in a subsequent trial.
IMPORTANT PROVISIONS
Section 299, CrPC –This Section provides provisions relating to the recording of evidence in absence of the accused person. Specifically, it provides that a competent court can allow the recording of evidence of a witness if the accused person is absconding and there is no reasonable possibility of his arrest. Such evidence can, later on, be used in a proceeding if the witness is no longer available to testify by that time.
Section 33, Indian Evidence Act –This Section provides that the evidence of a witness in a judicial proceeding is relevant and may be used in a subsequent proceeding to prove the facts contained in the evidence of that witness if that witness is dead at the time of the subsequent proceeding.
OVERVIEW
- In this case, a rape victim had filed a written complaint against the Petitioner and 4 others. Based on that complaint, an FIR was registered against them under Sections376(2)(g), 120B, 323, 506, 34 of the Indian Penal Code.
- 3 of the accused persons were arrested by the police. But, the petitioner and one more accused could not be arrested. Warrant of arrest and later on, a proclamation was also issued against the absconding accused persons, but they could not be apprehended.
- So, the police filed a chargesheet against the co-accused persons, showing the Petitioner and the other person as absconders. The committing court took cognizance and segregated the case against that the absconders as there was no imminent chance of their apprehension.
- The case was committed to the Court of Sessions and the charges were framed. The prosecution examined 45 witnesses during the trial, but it did not file any application under Section 299 (1) of the CrPC for a direction that the evidence recorded in the trial also be recorded against the absconders.
- The trial court convicted and sentencedthe accused persons, who were put on trial. After the conviction, the rape victim died.
- Later on, the absconders were arrested. Charges were framed against them, and they were put on trial. The prosecution filed an application under Section 33 of the Indian Evidence Act, praying that the evidence of the rape victim and her statement under Section 164, CrPC be considered as evidence against the apprehended absconders.
- Trial Court allowed that application of the Prosecution. So, the petitioner challenged that order before the Hon’ble Calcutta High Court.
ISSUES RAISED
- Whether a retrospective direction could be issued under Section 299 (1) of the CrPC for considering the evidencerecorded in an earlier trial,to be used against an absconding accused in a subsequent trial.
- Whether Section 299 (1) allows trial in absentia.
ARGUMENTS ADVANCED BY THE PETITIONER
- The petitioner argued that the State filed an application under Section 33 of the Indian Evidence Act without any reference to Section 299 (1) of the CrPC. During the trial, when the evidence of the deceased rape victim was recorded, the Prosecution was required to file an application under Section 299 (1) of the CrPC. But it did not file it.
- So, it was contended that as the aforementioned application was not filed, the evidence taken in an earlier proceeding could not be used against the petitioner. When the statute required a thing to be done in a particular manner, it must have been done in that manner or not at all.
ARGUMENTS ADVANCED BY THE RESPONDENT
- It was argued by the State that it was self-evident that the petitioner had absconded and that there was no imminent possibility of arrest, as the petitioner could not be apprehended even after the issuance of a warrant of arrest and proclamation.
- Further, it was submitted that the failure to invoke Section 299 (1), CrPC during the trial of co-accused persons was just an irregularity and that it did not prejudice the petitioner.
- It was also contended that by his voluntary act of absconding,the Petitioner waived his right to be present and cross-examine the witnesses during the trial of co-accused persons.
JUDGEMENT ANALYSIS
- After hearing arguments from both sides, the Hon’ble Calcutta High Court observed that it was an admitted position on the part of the State that no effort was made in the course of the trial of the co-accused persons to have the prosecution evidence recorded against the absconding petitioner.
- It further observed that the provision contained in Section 299(1) is an enabling one, that provides an opportunity to the prosecutor to obtain direction from the trying court that the prosecution evidence led against the co-accused person in the trial be recorded against the absconder also.
- It also noted that the law casts a burden on the prosecutor to invoke Section 299 (1) in the earlier trial and obtain a direction from the trying court. Once a prosecutor fails to do so, it could not retrospectively obtain such direction during the subsequent trial.
- The court observed that the prosecutor could not lay blame on the absconding accused if, during the subsequent trial, vital evidence was lost due to death or non-availability of the witness if it did not exercise its right available under Section 299 (1).
- It noted that Ex-post facto direction during the subsequent trial would be of no consequence as the witness would either be dead or unavailable at that material point in time. Hence, such a direction would certainly operate to the prejudice of an accused by retrospectively extinguishing his right to cross-examine after the witness had died.
- Furthermore, the Court observed that Section 299 (1) of the CrPC does not provide for a trial in absentia of an absconding accused.
CONCLUSION
With the aforementioned observations, the Hon’ble Calcutta High Court allowed the petition and set aside the order of the Trial Court. However, it proposed appropriate amendments to the CrPC for incorporating a provision for trial in absentia of an absconding accused of better administration of criminal justice.The court stressed upon the pernicious impact of abscondence on speedy justice and the rights of victims. The Hon’ble Calcutta HC also noted that despite the observations of the Apex Court [in Hussain and Anr. v. Union of India (2017 5 SCC 702)] in this regard, no amendment has been made to Section 299(1) of the CrPC to provide for trial in absentia of an absconder.
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