- In the recent case, Kader Khan v State of West Bengal, the Hon’ble Calcutta HC has proposed that it is immensely important to bring amendments to Section 299 (1) CrPC in order to provide a fair trial in absentia of an absconder which might in the future result in the loss of valuable shreds of evidence due to the death of the witness.
- It was observed that appropriate amendments incorporated in the Code of Criminal Procedure would furnish better administration of criminal justice in absentia of an absconding accused.
- The petitioner moved the HC against the order of the Trial Court judgment which appreciated the evidence of the rape victim who succumbed to death and her statement recorded before the Magistrate read against the petitioner.
- Three out of five accused were arrested by police and testified by the rape victim before the court. One of the two accused who absconded was the petitioner.
- As the two accused couldn’t be found the Court took cognizance and as there was no imminent chance of their apprehension their case was segregated. Subsequently, the rape victim died and in September 2016 the two absconding accused were found and faced the trial.
- Since the victim had died in 2015, the prosecution had pleaded in Court to allow her testimonies to be used as evidence in the afresh segregated trial against the absconding accused. The trial Court had allowed the plea.
- The Division Bench held that section 299 CrPC has an unambiguous duty on the prosecutor to obtain a direction from Trial Court to allow evidence against the absconding accused to be used in future trials. U/s 299 CrPC, it was essential that the prosecutor had mentioned to the trial court that it wanted to record the evidence against all five rape accused, including those who had absconded.
- The Court stated that it was against the fundamental principle of criminal jurisprudence to transfer evidence recorded in the earlier trial after completion to be used in following trials.
- The Hon’ble Calcutta HC relied on the case, Vijay Ranglal Chorasiya v State of Gujarat, wherein the Apex Court had disapproved the High Court judgment to rely upon the evidence recorded in the earlier trial of co-accused against the absconder.
- The application by the petitioner was allowed and Registrar General was directed to send a copy of the judgment to Principal Secretaries of the Ministry of Home Affairs and Ministry of Law and Justice for consideration of proposed amendments.
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