Top News Headlines 2nd May 2022: Evidence In Criminal Cases Cannot Be Taken In Absence Of Accused, Unless Personal Attendance Dispensed With

Evidence In Criminal Cases Cannot Be Taken In Absence Of Accused, Unless Personal Attendance Dispensed With: Karnataka HC

• In GH Abdul Kadri vs Mohammad Iqbal the Hon’ble Karnataka HC has held that a criminal trial cannot take place in the absence of the accused, unless his personal attendance has been dispensed with for valid reasons. 
• The Court further held that the examination of the accused under section 313 CrPC by the Court cannot be dispensed with even if incriminating evidence appears in the evidence of the witnesses. Speedy trial does not mean jumping stages in a criminal trial, the Court said. 
• The instant revision petition was filed by the petitioner, GH Abdul Kadri, challenging the order of the Lower Court and the Sessions Judge. The petitioner was accused of offences under section 138 Negotiable Instruments Act. The lower Court had observed that the petitioner did not appear before the Court repeatedly, despite the issuance and service of summons. The Court relied on the judgement of the Apex Court in Indian Bank Association and ors vs Union of India (2014) SCC and accepted the affidavits filed in the cases by the respondent, dispensed with the statements of the accused under section 313 CrPC, and then convicted the petitioner in all the cases. 
• In appeal before the Sessions Judge, the Hon’ble Court held that from the evidence brought on record by the complainant, and the documents that were produced by him, a clear case of the petitioner/accused’s culpability was made out. The Court further went on to observe that an offence under section 138 of NI Act is a document based offence, and thus, there was no need for the accused to appear before the Court, and thus upheld the decision of the Trial Court in all the cases. 
• Before the Hon’ble HC, the Counsel for the petitioner argued that criminal trials must be held in the presence of the accused, unless his personal attendance has been dispensed with. It was also argued that section 143 of the NI Act provides that the proceedings would occur by way of summary procedure, and that sections 262 to 265 of CrPC would apply in the case. Thus, recording the plea under section 251 of CrPC is compulsory. Since this procedure was not followed, the judgement of the trial Court would violate the concept of procedure established by law under Article 21 of the Constitution.
• It was also argued that if the accused did not respond to the summons, his presence must be ensured by the issuance of a warrant or by proclamation. Examination of the accused under section 313 of CrPC is mandatory, and can be done away with under summons trial only when the personal attendance of the accused has been dispensed with. 
• Referring to the decision of the Hon’ble Supreme Court in Indian Bank Association and ors vs Union of India, the HC observed that the Apex Court has clearly held that if the summons has been returned unserved, immediate follow up action must be taken. The reason for the non-service of the summons must be ascertained, or a warrant may be issued. The Hon’ble Apex Court did not indicate in this case that the trial can be held in the absence of the accused, if he did not appear before the Court despite the issuance of the summons. 
• The Hon’ble HC also observed that section 273 CrPC clearly states that the evidence must be taken in the presence of the accused, unless his personal attendance has been dispensed with. The only provision in CrPC that provides for the recording of evidence in the absence of the accused is under section 299 CrPC. Thus, the Court observed that it was clear that except under section 299 CrPC, evidence cannot be recorded for any other reason in the absence of the accused.
• Thus, the revision was allowed and the decisions of the lower Court and the Sessions Court were set aside. 

Sidhu Moosewala Murder: HC seeks Punjab Government's Reply On Leakage of Information On Security Withdrawal Into Public Domain

• The Punjab and Haryana High Court has asked the Punjab Government to give clarification on the leakage of a list of persons whose security was withdrawn, one of them being the late Punjabi singer, Sidhu Moosewala.
• The State Government will have to give its response by today. 
• Justice Raj Mohan Singh while discussing the matter said that the relevant information as to whether the order has become public on account of any RTI information or leakage or in collusion of someone having access to the order in question be also brought on record by June 2. 
• The Court made this direction while deciding on a plea filed by the former Deputy Chief Minister of State, Om Prakash Soni. 
• This plea was filed to challenge the decategorization of his security by the Punjab Government.
• He claimed that this decategorization was arbitrary and not based on any reliable objective data. 
• The plea also mentioned that the decategorization was done without informing him about the same or issuing any show-cause notice. 
• On May 5, 2022, the Punjab Government reduced, and in some cases withdrew the security of several persons.
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• This step was allegedly taken in absence of any proper investigation and subsequently, led to the murder of Sidhu Moosewala. 
• This step by the authorities has caused massive outrage amongst the general public. #justiceformoosewala is doing rounds on social media platforms. 
• Meanwhile, Lawrence Bishnoi, the suspect in Sidhu Moosewala’s killing, has approached the Delhi High Court asking for security arrangements on him, fearing an encounter by the Punjab Police.
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• Bishnoi, who is currently serving his sentence in a MCOCA case in Tihar jail, asked the Court to give directions to the Tihar Jail authorities to intimate Bishnoi's lawyers before handing him over to any other state police. 
• He further claimed that the Punjab State Police is trying to falsely implicate him in the Moosewala murder. 
• On Wednesday, Bishnoi's lawyers withdrew this plea and said that the same will be filed before the Punjab and Haryana High Court. 
• In light of the Moosewala Murder Case, a row of petitions have been moved before the HC challenging the decision of the authorities to withdraw their security.
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• In the current matter [Om Prakash Soni v. State of Punjab & Ors.], the Government was asked to furnish relevant material in a sealed cover for Court's perusal to find out the basis of the security withdrawal. 
• What remains to be seen is whether the State Government authorities will take responsibility for its careless decision made in this regard or will the Court have to face a series of blame-games?

Arrears of Pension Can't Be Denied On Ground Of Delay In Approaching The Court: Supreme Court

• The Hon'ble Supreme Court, in its recent judgement held that pension is a continuous cause of action and a delay in approaching the Court cannot justify its denial.
• In the present case, [Shri M.L.Patil (Dead) Through LRs v. State of Goa And Anr.], the appellant along with other petitioners moved the Hon'ble Bombay High Court in a writ petition against the Government of Goa for retiring them 2 years before their retirement age, i.e. they were retired at the age of 58 when the retiring age is actually 60 years.
• According to the Appellants, they were inducted into service before the appointment day, provided under the Goa, Daman and Diu Reorganization Act, which led to the formation of the State of Goa and the Union Territory of Daman and Diu.
• The contention of the Appellants were that the Act of the Goa Government is in contravention to Section 60(6) of the Reorganization Act which relates to the conditions of service applicable before the appointment day, and says that these conditions should not be varied to the disadvantage of the employees appointed prior to it, except when approved by the Central Government. 
• The Hon'ble Bombay High Court agreed with the Appellants to the extent that the age of retirement is 60 years but condoned the delay in approaching it for the remedy. 
• The Court held that due to this delay, the Appellants were not entitled to any salary or back wages for the 2 extra years of service that they would have served if not for the Goa Government's action. 
• The Ld. Court directed that the pension would be calculated as if they continued service till they attained the retirement age, i.e. 60 years, but any arrears of pension would not be paid. 
• Further, the pension would be payable at the revised rates from January 1, 2020. 
• This decision of the Hon'ble High Court was set aside by the Apex Court by a Bench comprising Justices M.R. Shah and B.V. Nagarathna who held that the Appellants should not be denied the arrears of pension.
• They held that the Appellants were rightly entitled to pension from the day they turn 60 at the revised rates.
• The Court directed the Government to pay the arrears of pension to the Appellant within a period of four weeks. 
• After hearing the contentions of both the parties, the Apex Court remarked that the decision of the Bombay High Court might be justified in denying salary to the Appellants for the extra two years.
• However, denial of arrears of pension is wrong and unjustified as pension is a continuous cause of state and the Appellants would be given the same when they attain the age of 60 years.