I '

i -~

[2009] 8 S.C.R. 591

JAYENDRA VISHNU THAKUR

STATE OF MAHARAHSTRA AND ANOTHER

(Criminal Appeal No. 981 of 2009)

MAY 11, 2009

[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

PENAL

CODE,

1860/EVIDENCE ACT, 18721

TERRORIST

AND

DISRUPTIVE

ACTIVITIES

(PREVENTION) ACT, 1987: C

Sections 299133114(5) - Recording of evidence of witness in absence of accused - Relevancy of certain evidence for proving the truth of facts stated therein - Interpretation of.

INTERPRETATION OF STATUTES:

Any word given in a statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used.

E Interpretation of the provisions of Section 299 Cr.P.C., Section 33 of Evidence Act, 1871 and Section 14(5) of TADA relating to recording of evidence of witnesses in absence of accused and relevancy of certain evidence for proving the truth of facts stated therein, is F involved in the appeal.

Allowing the appeal, the Court

HELD: 1. Even in the United States of America, the G accused's right under the Sixth Amendment is not absolute. The right of confrontment of an accused is subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an

591 H

accused can be asked to go outside the court room so

~\...

A long he does not undertake to behave in an orderly manner. [Para 13] [610-C-D]

Jack R. Goldberg v. John Kelly 25 L. Ed 2d 287 and

B Greene v. Mc Elorey 3 L Ed 2d 1377, referred to.

2. An accused is, always entitled to a fair trial. He is • also entitled to a speedy trial but then he cannot interfere I with the governmental priority to proceed with the trial c which would be defeated by conduct of the accused that prevents it from going forward. In such an event several options are open to courts. What, however, is necessary is to maintain judicial dignity and decorum. [Para 13] [610-

D-F]

3. A right to cross-examine a witness, apart from

.1being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, crossexamination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to E cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed

F thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. [Para 13] (610-

H; 611-A-B]

G Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417, referred to. ~

State of Illinois v. William Allen 397 US 337, referred to.

4. It is also beyond any cavil that the provisions of H

JAYENDRA VISHNU THAKUR v. STATE OF 593

MAHARAHSTRA AND ANR

_.,, Section 299 of the Code must receive strict interpretation, A and, thus, scrupulous compliance thereof is imperative in character. [Para 14] [611-C-D]

5. It is a well known principle of interpretation of statute that any word defined in the statutory provision B should ordinarily be given the same meaning while construing the other provisions thereof where the same • term has been used. Under Section 3 of the Evidence Act • like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be c arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part D ... of the evidence is imperative in character. [Para 14] [611-

D-F]

6. Indisputably both the conditions contained in the first part of Section 299 of -the Code must be read E conjunctively and not disjunctively. Satisfaction of one of the requirements should be not sufficient. It was thus, obligatory on the part of the court to arrive at a finding

1 on the basis of the materials brought on record by -' bringing a cogent evidence that the jurisdictional facts existed so as to enable the court concerned to pass an F

appropriate order on the application filed by the Special Public Prosecutor. [Para 16] [614-E-G]

Rustam v. Emperor, AIR 1915 All 411; Mysore v.

Sanjeeva, AIR 1956 Mys. 1; Shiv Chander Kapoor v. Amar G

_..

Bose, (1990) 1 SCC 234; Manboth v. Emperor AIR 1944 Nag 27 4; Nazir Ahmad vs. Emperor AIR 1936 PC 253: 17 Lah. 629 Bhagwati v. Emperor, AIR 1918 All 60; Janu v. Emperor, AIR 1947 Sind 122; Ghurbin Bind v. Queen Empress, 1884

(10) ILR Cal 1097; Nirmal Singh v. State of Haryana. (2000) H

A 4 sec 41 and Kartarey v. State of UP., (1976) 1 sec 172, referred to.

7 Once a person is arrested he cannot be considered as a proclaimed offender It is not a law that

8 once a proclaimed offender shall all along be treated to be so. If he had a right to take part m the trial, the trial court was duty bound to provide for the same. In any event the Designated Judge did not rely on the proclamation made under Section 82 of the Code. It is in C the aforementioned situation, one has to consider as to whether sub-section (5) of Section 14 of the Act would be attracted. No application has been filed under the aforementioned provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that D it was necessary so to do. The condition precedent therefor was 'if it thinks fit'. For the said purpose he was to record reasons. Such an order could be passed with a view to continue with the trial. It may be for a day or for a few days. The accused ordinarily and subject to just E exceptions must be facing the trial. In other words, the court was required to opine that recording of evidence is urgent or there existed certain and cogent reasons which would enable him to record evidence in absence of an accused or his pleader. Recording of reasons is F imperative in character. It is the only safeguard which had been provided to check an arbitrary exercise of power.

It expressly preserves the right of the accused to recall the witness for cross-examination. It does not contemplate a situation like the one under Section 299 G of the Code. By reason of the said provision even the

relevance of the evidence as envisaged under Section 33 of the Evidence Act is not taken away. [Para 17] [622-E-

H; 623-A-D]

8. An accused ordinarily would not be presumed to

f f

JAYENDRA VISHNU THAKUR v. STATE OF 595

MAHARAHSTRA AND ANR

have waived his right. The procedural principles like A estoppel or waiver would not be attracted where an order is passed without jurisdiction as the same would be a nullity. An order which is a nullity cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. [Para 17] [625-E-F] B

Chief Justice of Andhra Pradesh & Anr. vs. L. V.A Dikshitulu & Ors. AIR 1979 SC 193, relied on.

9.1. On bare perusal of the provisions of Section 299 C of the Code and Section 14(5) of TADA it would be evident that they operate in different fields. The ingredients of the said provisions are different. Materials, which are, thus, required to be brought on record by the prosecution for application of the aforementioned 0 provisions may be different, although they may be overlapping to some extent. [Para 17] [625-G-H]

9.2. In the instant case the Public Prosecutor must be of the opinion that it was not a case where Section 14(5) of TADA shall apply, having regard to the fact that E neither the accused nor his pleader was before the Court.

Although this Court does not intend to pronounce finally on the point, but it appears that Section 14(5) of TADA would be attracted only when the accused is facing trial and/or otherwise represented thr:ough his advocate. If F neither the accused nor his pleader had an occasion to be before the Court, sub-section (5) of Section 14 may not be held to have any application. [Para 17] [626-A-B]

9.3. There is another aspect of the matter which G cannot be lost sight of. No charge-sheet was filed against the appellant. In the charge-sheet dated 27th August, 1993, rightly or wrongly, he had been shown as absconding. In the absence of any charge-sheet no cognizance could have been taken against him in the H

A sense that he could not have been directed to stand trial.

It is not the contention of the respondents that the Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him.

Undoubtedly in the order dated 30th December, 1993, B while framing charges his name had beeri shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in the trial. He was arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003.

C All the witnesses expired prior thereto. The question of his exercising his right to cross-examine the said witnesses would have arisen only after the said date and not prior thereto. Thus, it is incorrect to contend that such a right could be exercised at any date prior thereto. Such D a question could have arisen provided he was facing trial.

In that view of the matter, this Court is of the opinion that it was not a case wherein sub-section (5) of Section 14 of the Act would have been attracted s:nce the order of the TADA Court specifically invoked Section 299 of the E Code. [Para 17] [626-C-H; 627-A]

9.4. This Court has proceeded on the basis that the right of confrontation is not a fundamental right or whereby accused's fundamental right has not been F oreached. Article 21, however, envisages a fair trial; a fair procedure and a fair investigation. By reason of such a right alone the appellant was entitled not only to be informed about his fundamental right and statutory rights but it was obligatory on the part of the Special Public G Prosecutor to place on record all the requisite materials

before the Designated Judge to show that the appellant, after his arrest in the Delhi case on 23rd July, 1993 was not an absconder and thus the provisions of Section 299 of the Code was not attracted. [Para 17] [627-A-C]

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JAYENDRA VISHNU THAKUR v. STATE OF 597

MAHARAHSTRA AND ANR.

Noor Aga v. State of Punjab 2008 (9) SCALE 691; Kartar A Singh v. State of Punjab, (1994) 3 SCC 569; Cho/an Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 and Vima/ben Ajitbhai Patel v. Vatslaben Ashokbhai Patel und others, (2008) 4 SCC 649, referred to.

10. Infringement of a valuable right itself causes ... prejudice. [Para 17] [630-A] •

S.L Kapoor v. Jagmohan (1980) 4 SCC 379, relied on.

11. When an order has been passed in violation of a c

fundamental right or in breach of the principles of natural justice, the same would be nullity. [Para 17] [630-D]

- ' A.R. Antulay v. R.S. Nayak and another, (1988) 2 SCC 602; State of Haryana v. State of Punjab, (2004) 12 SCC 673 D and Rajasthan State Road Transport Corporation and others

v. Zakir Hussain, (2005) 7 SCC 447, relied on.

Case Law Reference:

25 L. Ed 2d 287 referred to Para 13 E

3 L Ed 2d 1377 referred to Para 13 _., ..

(2008) 2 sec 417 referred to Para 13

397 us 337 referred to Para 13 F

AIR 1915 All 411 referred to Para 16

AIR 1956 Mys. 1 referred to Para 16

....

(1990) 1 sec 234 referred to Para 16 G

AIR 1944 Nag 274 referred to Para 16

AIR 1936 PC 253: ' H

.. .._

A 17 Lah. 629 referred to Para 16

AIR 1918 All 60 referred to Para 16

I AIR 1947 Sind 122 referred to Para 16

B 1884 (10) ILR Cal 1097 referred to Para 16

(2000) 4 sec 41 referred to Para 16 .. '

(1976) 1 sec 112 referred to Para 17

AIR 1979 SC 193 relied on Para 17

2008 (9) SCALE 691 referred to Para 17

(1994) 3 sec 569 referred to Para 17

_J •.

(2005) 3 sec 241 referred to Para 17

(2008) 4 sec 649 referred to Para 17

(1980) 4 sec 379 relied on Para 17

(1988) 2 sec 602 relied on Para 17

(2004) 12 sec 673 relied on Para 17

(2005) 1 sec 447 relied on Para 17 >

F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 981 of 2009.

From the Judgment & Order dated 6.3.2007 of the Designated Court (TADA), Pune in Applications Exh. 1118 and

G 1227 in TSC No. 2/1996, 1/1997 and 2/1997.

Shekhar Nafade, Manoj Goel, Shuvodeep Roy, Wajeeh Safiq, Avinash Kr. Brij Bhusan, Gopal Verma, Ravindra Keshavrao Adsure and Sanjay Jain for the appearing parties.

H The Judgment of the Court was delivered by

JAYENDRA VISHNU THAKUR v. STATE OF 599

MAHARAHSTRA AND ANR.

\ S.B. SINHA, J. 1. Leave granted ..

2. Interpretation of the provisions of Section 299 of the Code of Criminal Procedure, 1973 (for short 'the Code'), Section 33 of the Indian Evidence Act, 1871 as also Section

14(5) of the Terrorist and Disruptive Activities (Prevention) Act, B 1987 (for short 'the TADA') is involved in this appeal which

~ arises out of a common order dated 6th March, 2007 passed by Dthe Designated Court (TADA), Pune, in Application Exh. 1118 and 1227 in TSC No. 2/1996, 1/1997 and 2/1997.

3. The said question arises in the following fact situation. c

One Suresh Narsinh Dube was shot dead at Nallasopara Railway Station in the suburbs of Mumbai on 9th October, 1989.

.,- ---i.

The impleaded respondent herein, the brother of the deceased, filed a complaint petition with regard to the incident. Appellant D absconded.

A proclamation under Section 82 of the Code was thereafter issued on 9th February, 1993 declaring the appellant as a proclaimed offender. Subsequently, the said proclamation E was also published in different newspapers on various dates.

J In connection with the said occurrence initially 12 persons ; were charge-sheeted upon completion of investigation on 27th August, 1993, wherein eight persons, including the appellant, were shown to be absconding. Appellant and other accused F were also booked under TADA.

Indisputably, in connection with a case arising out of FIR . Nos. 140-144 of 1993 the appellant was arrested in Delhi on 23rd July, 1993. By a letter dated 1st September, 1993 the G _.

Investigating Officer in the present case informed the Designated Judge, TADA Court at Mumbai in regard to the appellant's arrest in the Delhi case.

4. Appellant was arrested by the Maharahstra Police on H

A 23rd October, 1993 in connection with FIR No.3/1992 and was ,,

produced before the Chief Judicial Magistrate, Thane on 24th October, 1993 and was remanded to police custody till 20th November, 1993. He was again shown to have been arrested on 20th November, 1993 in two cases; one relating to FIR No.

B 237/1992 of Manikpur Police Station and the other in FIR

No.161 of 1992 of Virar Police Station. He was in judicial custody till 21st December, 1993.

5. On a Special Leave Petition (Crl.) Nos. 643-646 having c been filed before this Court by the appellant and others, this Court by its order dated 23rd November, 1993 inter alia directed splitting up of the case with regard to the absconding accused. Charges in the matter were framed by the Designated Judge on 30th December, 1993.

J • - D

6. On an application filed by the Public Prosecutor under Section 299 of the Code, an order was passed by the Designated Judge on 1st January, 1994.

7. The State of Maharashtra filed a writ application before

E the High Court of Delhi for securing the presence of the appellant in the cases pending in the State of Maharashtra including the case in question, which by reason of an order dated 19th December, 1994 was dismissed.

On or about 11th July, 1995 an application under Section 83 of the Code was filed by the Investigating Officer through the Public Prosecutor wherein it was admitted that the appellant had not been absconding.

8. On an application moved by the State of Maharashtra G to the Designated Judge, TADA, Delhi for transfer of the * appellant to Maharashtra, the Designated Judge by his order dated 21st July, 1995 refused to do so in view of the order passed by the High Court on 19th December, 1994.

H Appellant moved an application for production warrant for

,;.

JAYENDRA VISHNU THAKUR v. STATE OF 601 -l

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

recording his plea against charges which was dismissed on A 25th July, 1995.

Yet again he filed an application on 21st August, 1995 praying for issuance of transfer warrant.

9. Indisputably 10 witnesses were examined during the B

period 6th November, 1995 to 22nd January, 1997, who have since expired. Their names, respective dates of their deposition and dates of death, are as under:-

PW Name of the Witness Date of Date of c

No. deposition death

36 Parhuram Sonu Kawale 6.11.1995 29.1.2004

--.i. 60 Bharat Jaggubhai Rathod 18.12.1995 22.6.2004 D

42 Sakharam Samji Kadu 14.11.1995 13.2.2003

69 Madhukar Dattatraya 18.1.1996 19.3.2001 Paradkar E 25 Sitaram Dhari Yadav 17.10.1995 Dec. 2001

~ 81 Aruta Malleshwar Rao 20.2.1996 1.5.2001 .. r....

72 Hanumanta Raghunath 20.1.1996 5.9.1997 Jadhav F

77 Shivajirao Vithalrao 14.2.1996 28.7.2003 Barawkar

88 Sham Maruti Bingawade 31.1.1997 25.4.1997 G ..

83 Sayajirao Bapusahab 22.1.1997 14.10.2002 Dubai

Appellant was formally arrested in the present case on 4th August, 1997. A supplementary charge sheet was filed on 19th H

A August, 1997. Charges were framed against six accused persons including the appellant on 15th November, 2003.

In the said proceeding two applications were filed by the Senior Public Prosecutor on 25th September, 1996 and 11th B October, 2006 for exhibiting the depositions of PW-36 and nine other witnesses, who had since expired, which by reason of the impugned order have been allowed.

Aggrieved by the said order, the appellant is before us. c

10. Mr. Manoj Goel, learned counsel appearing on behalf of the appellant, inter a/ia would submit :-

The impugned order is wholly unsustainable as the Designated Judge, TADA, in its order dated 1st

-L--' D January, 1994 on the application under Section 299 of the Code did not assign sufficient and cogent reasons which would satisfy the jurisdictional facts contained in first part thereof or the legal requirements contained in the second part.

E 2.

Since the jurisdictional facts require proving of not only the abscondance of an accused but also a situation where immediate prospect of his arrest ' was absent and which being a condition precedent; .. .... and as in the facts and circumstances of this case F the appellant's presence could have been obtained as he was under arrest in a Delhi case which fact was known to the prosecution, the impugned order cannot be sustained.

G 3.

Right to confront a witness being a fundamental right in terms of Article 21 of the Constitution of India

iand Section 299 of the Code being an exception thereto, the same should be strictly construed.

ti 4.

Admittedly appellant having been arrested by the

~ -<

...

JAYENDRA VISHNU THAKUR v. STATE OF 603

MAHARAHSTRA AND ANR. [S.S. SINHA, J.]

Delhi police on 23rd July, 1993 and in all subsequent applications as also in the letters the prosecution it having not been shown that the appellant had been absconding, the order of the learned DEisignated Judge dated 1st January, 1994 must be held to be illegal and without jurisdiction.

The legal requirements to attract the provisions of Section 33 of the Evidence Act having not been complied with by prosecution as no finding has been arrived at by the designated court that the materials brought on record were sufficient to attract the same.

The requirements of law for the purpose of issuance of a proclamation in terms of Section 82 of the Code being only reason to believe' and the requirement for exercise of jurisdiction by the Court under Section 299 of the Code being "proved" and, thus, only because an accused had been absconding the same by itself could not have been a ground for invoking the jurisdiction under Section 299 of the Code in absence of any finding that not only the appellant was absconding but he has intentionally been avoiding arrest.

The purported evidence of the ten witnesses who had been examined in the first phase of trial having been collected illegally, the same was not admissible in evidence in the present case and in that view of the matter the impugned judgment cannot be sustained .

O 11. Mr. Nafade, learned counsel appearing on behalf of he State and Mr. Sanjay Jain, appearing on behalf of the respondents, on the other hand, would contend:

'1-

A (1) Section 299 of the Code, Section 33 of the Evidence Act and Section 14(5) of TADA being cognate provisions, each one of them has a distinct role to play, although the provisions thereof may have been overlapping to some extent.

B (2) TADA being a special statute and having an overriding effect on other statutes as would appear from Section 25 thereof, subsection (5) of Section

14 thereof must also be held to have overriding c effect over the provisions of Code of Criminal Procedure and/or the Indian Evidence Act and in that view of the matter the order dated 1st January, 1994 is unassailable

(3) Non Recording of reasons, in any event, being only D an irregularity, the provisions of Section 465 of the Code would be attracted.

(4) Appellant at all the material times being aware of the entire proceeding and having taken part therein

E from time to time, he cannot at this stage be permitted to turn around and allowed to raise a contention in regard to the applicability or otherwise of an order in the previous case.

F (5) Charges having been framed against the appellant in terms of an order dated 20th December, 1993 in respect whereof he despite being aware but having not availed the benefit of cross-examining the witnesses in terms of Section 14(5) of TADA

G at an appropriate stage, is estopped and precluded from questioning the legality or validity of " the said order dated 1st January, 1994.

(6) Sub-section (5) of Section 14 of TADA does not require proving of foundational facts beyond all

H reasonable doubts and in the event, the satisfaction

JAYENDRA VISHNU THAKUR v. STATE OF 605

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

~ arrived at by the Court on the basis of the material A evidences on record, the legal requirements must be treated to have been satisfied.

(7) Sub-section (5) of Section 14 of TADA imposes a reasonable restriction on the right of the accused B and in any event as the constitutionality of the said provision is not in question, this Court should not _. exercise its discretionary jurisdiction i

Appellant is being prosecuted under TADA. The Act was enacted to make special provisions for the prevention of, and c

for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto, Part II whereof provides punishments for, and measures for coping with, terrorist and disruptive activities. .- D Part Ill of TADA empowers the Central Government or the State Government to constitute one or more Designated Courts for such area or areas or such case or class or group of cases as may be specified therein.

12. A Designated Judge while holding trial under the Act E

indisputably has the power to determine all questions including the question as regards his own jurisdiction. Section 11 of

~ TADA provides that every offence punishable under any .. ;... provision of the said Act shall be triable only by the Designated Court within whose local jurisdiction it was committed.

Section12 empowers the Designated Court to try any other offence, at th~ same trial, with which the accused may be charged if the offence is connected with such other offence.

Section 14 provides for the procedure and powers of the G ..

Designated Court. Sub-section (5) of Section 14 provides for a non-obstante clause in terms whereof notwithstanding anything contained in the Code, a Designated Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record H

A the evidence of any witness, subject to the right of the accused

'.Ito recall the witness for cross-examination. Section 25 of TADA also provides for a non obstante clause stating that the provisions thereof or any rule made thereunder or any order made under any such rule shall have effect notwithstanding

B anything inconsistent therewith contained in any enactment or in any instrument having effect by virtue of any enactment other than the Act. • '

13. We must at this stage also consider the effect of the c

relevant provisions of the Code.

Chapter XXlll of the Code provides for evidence in inquiries and trials. Section 273 of the Code mandates that all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his D personal attendance is dispensed with, in the presence of his i . pleader, which was specifically provided.

Section 299 of the Code expressly provides for the power of the court to record evidence in absence of the accused in

E the following term :-

"299. Record of evidence in absence of accused:- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the \.

• Court competent to try or commit for trial, such person for ....

F the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the G offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his .. presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

JAYENDRA VISHNU THAKUR v. STATE OF 607

MAHARAHSTRA AND ANR. [S.B. SINHA, J.] ,,,

(2) If it appears that an offence punishable with death or A -<

imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so B taken may be given in evidence against any person who is subsequently accused of the offence; if the deponent is • dead or incapable of giving evidence or beyond the limits !

of India."

It is neither in doubt nor in dispute that sub-Section (1) of c

the said provision is in two parts - the first part provides for proof of jurisdictional fact in respect of abscontion of an accused person and the second that there was no immediate prospect of arresting him.

D .- .,,.

In the event, an order under the said provision is passed, deposition of any witness taken in absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or E inconvenience which, under the circumstances of the case, would be unreasonable.

J Now, we must also take notice of Section 33 of the ...

Evidence Act, 1872, which reads as under :- F

33. Relevancy of certain evidence for proving, in ! subsequent proceeding, the truth of facts therein stated.

- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant

G for the purpose of proving, in a subsequent judicial .. proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is deaa or cannot be found, or is incapable of giving evidence, or is kept out of the way by the_adverse party, or if his presence cannot be obtained without an H

A amount of delay or expense which, under the " ./.- circumstances of the case, the Court considers unreasonable; Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and B opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and ' i the accused within the meaning of this section. c The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right.

The Sixth amendment of the United States Constitution explicitly provides therefor, which reads as under:- D " . "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and c::strict wherein the crime shall have been committed, which district shall have been previously E ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence." ..

~ F We may, however, notice that such a right has not yet been accepted as a fundamental right within the meaning of Article 21 of the Constitution of India by the Indian courts. In absence of such an express provision in our constitution, we have to

G proceed on a premise that such a right is only a statutory one.

The larger question, namely as to whether right to confront a witness by an accused is a fundamental right or not, in our opinion, need not be gone into by us in these proceedings as the appellant does not question the constitutionality of either Section 299 of the Code or Section 14(5) of TADA or Section H 33 of the Evidence Act.

JAYENDRA VISHNU THAKUR v. STATE OF 609

MAHARAHSTRA AND ANR. [S.B. SINHA, J.] _/

In the context of our constitutional scheme; fundamental A rights are not absolute being subject to reasonable restrictions.

There lies a distinction between Bill of Rights contained in the Constitution of the United States and the Fundamental Rights provided for in the Indian Constitution.

In Jack R. Goldberg v. John Kelly [25 L. Ed 2d 287 ] it B

• was inter a/ia held that even in a civil proceeding the 6th I Amendment is applicable, stating:-

"The fundamental requisite of due process of law is the c opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 58 L Ed 1363, 1369, 34, S Ct 779 (1914). The hearing must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 14 L Ed 2d 62, 66, 85 S Ct 1187 (1965). In the present context, ---· these principles require that a recipient have timely and D adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally."

E The Court further relied on the following observations from Greene v. Mc Elorey [ 3 L Ed 2d 1377 ].

~ • "Certain principles have remained relatively immutable in our jurisprudence. One of these is that, where F governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case G of documentary evidence, it is even more important where ... the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requiuerrients of confrontation and H

')_ A cross-examination. They have ancient roots. They find expression in the Sixth Amendment. ... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, ... but also in all types of cases where administrative ... actions were under B scrutiny."

Welfare recipients must therefore be given an opportunity ' to confront and cross-examine the witnesses relied on by •

the department." c We may, however, notice that even in the United States of America, the accused's right under the Sixth Amendment is not absolute. The right of confrontment of an accused is subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an accused can be

~ . 0 asked to go outside the court room so long he does not undertake to behave in an orderly manner. It was so held in State of Illinois v. William Allen reported in [ 397 US 337].

An accused is, however, always entitled to a fair trial. He E is also entitled to a peedy trial but then he cannot interfere with the governmental priority to proceed with the trial which would be defeated by conduct of the caccused that prevents it from going forward. In such an event several options are open to courts. What, however, is necessary is to maintain judicial •

F dignity and decorum.

The question which arises for consideration is whether the same will take within its umbrage the said principle. We will examine the said question a little later. We will proceed on the

G premise that for invocation of the provisions of Section 299 of the Code the principle of natural justice is inbuilt in the right of an accused. "

A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence H Act provides for examinationin-chief, cross-examination and

JAYENDRA VISHNU THAKUR v. STATE OF 611

MAHARAHSTRA AND ANR. [S.S. SINHA, J.]

re-examination. Section 138 of the Evidence Act confers a right A on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an B exception is to be curved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication.

there are statutes like the Extradition Act, 1962 which c excludes taking of evidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. 'Union of India, [ (2008) 2 SCC 417 ].

14. It is also beyond any cavil that the provisions of Section

-+ 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character.

It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 E of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding

A must be arrived at by the court in regard to the fact required to

~- be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the F analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character.

D 15. Keeping in view the aforementioned principles in G mind we may notice at this stage the application filed by the prosecution on 1st January, 1994 and the order passed thereon on the same date. which are as under :-

" The application on behalf of the prosecution herein pray that :- H

A a.

That this Hon'ble Court has framed the charge °'1oagainst the accused nos. 1 to 12 and absconding accused nos. 1 to 3 on 30.12.1993 and the case is postponed for hearing and recording of the evidence of the witnesses from today i.e. 1st B January, 1994.

That the evidence which is to be led against the present accused nos. 1 to 12 is also in respect of the absconding accused nos. 1 to 8. c c.

That it is proved that it has become necessary to record the evidence of the witnesses against the absconding accused in their absence.

It is, therefore, prayed that the order may be passed D to record the evidence against the absconding .. - accused nos. 1 to 8 in their absence.

Pune (Vijay Sawant)

Date - 1.1.1994 Special P.P." E

"ORDER

After splitting up the case with regard to the absconding • accused as per the directions of the Honourable Supreme ·• F Court in its order dated 23rd November, 1993 in petitions for Special Leave to Appeal Nos. 1643-4G/93 with SLP (Cr!.) No. 1972-73/93, 2230, 1936, 1900-01/93, this Court is proceeded with the present case and has framed theD charge against accused Nos. 1 to 12. However, as these

G twelve accused have been charged along with the absconding accused, as shown in the charge-sheet, the prosecution can adduce evidence relating to the absconding accused so far relevant the charge and the decision of the case. Eight accused persons have been

H shown as absconding accused. As the absconding

JAYENDRA VISHNU THAKUR v. STATE OF 613

MAHARAHSTRA AND ANR. (S.S. SINHA, J.]

accused are not before the Court the question of their A identity will also arise and it will be necessary to give them an opportunity to cross-examine the witnesses. Therefore, it would not be just and proper to use the evidence to be recorded in the present case against the absconding accused and he evidence will be required to be recorded B separately as to enable them to cross-examine the • witnesses. However, if any deponent dies or becomes ,

incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which under the circumstances c of the case would be unreasonable then the evidence recorded in this matter may be used as per the provisions of Section 299 of the Criminal Procedure Code.

-· (D.S. Zonting) D Judge, Designated Court, Pune

Dated 1st January, 1994"

16. The application having been filed by the Special Public Prosecutor and the order having been passed on the same date E

it is beyond any cavil that before the Court apart from the fact

.; that a proclamation under Section 82 had been issued against

~· the appellant, no other material was placed. It now stands accepted that even much prior thereto, i.e., as far back as 23rd July, 01993, the appellant was arrested. The said fact was F known to the investigating officer. By a letter dated 1st September, 1993 the Investigating Officer himself had informed the Court in regard thereto.

It also now stands admitted that at least in two cases G ... appellant had been arrested and produced before the Courts in Maharashtra and in fact had been remanded to the police custody. It is furthermore neither in doubt nor in dispute that whereas in one of those cases the appellant was arrested on 20th November, 1993 and on the same date he was shown to H

A have been arrested and taken in police custody once again in another case.

These facts were required to be brought to the notice of the Court.

The Court's attention should have also been drawn to the aforementioned letter dated 1st September, 1993.

Had these facts been brought to the notice of the court, could it pass the impugned order is the question?

We may assume that the court might have done so. But for the purpose of passing an order, be under Section 299 of the Code or sub-section (5) of Section 14 of TADA, it was required to apply its mind as regards the existence of the

' )

D jurisdictional fact. The materials on record were required to ::-:be discussed, reasons therefor were required to be recorded.

How despite the fact that the appellant had already been custody of the Delhi Police viz-a-viz the Maharashtra Police, he could be termed to be an absconder and there was no E prospect of securing his immediate presence, was required to be considered.

Indisputably both the conditions contained in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should be F not sufficient. It was thus, obligatory on the part of the learned court to arrive at a finding on the basis of the materials brought on record by bringing a cogent evidence that the jurisdictional facts existed so as to enable the court concerned to pass an appropriate order on the application filed by the Special Public G Prosecutor.

Section 299 of the New Code corresponds to Section 512 of the Old Code. The applicability of the aforementioned provisions came up for consideration before some of the High H Courts.

JAYENDRA VISHNU THAKUR v. STATE OF 615

MAHARAHSTRA AND ANR. [S.B. SINHA, J.] ,. We will notice a few of them.

In Rustam v. Emperor, [AIR 1915 All 411 ], the Allahabad High Court held as under:-

"It is clear from the language of the section that the Court B which records the proceedings under it, must first of all record an order that in its opinion, it has been proved that the accused has absconded and that there is no immediate prospect of his arrest. No such finding appears on the file of 1897 ; in fact no evidence was taken in that year to show that the present appellant was absconding c

and that there was no immediate prospect of his arrest.

The evidence of 1897 being in-admissible, the conviction of the appellant on the basis of such evidence cannot stand." ---.

D To the same effect is the decision of the Madras High Court in Mysore v. Sanjeeva, [AIR 1956 Mys. 1 ] wherein it was held:-

"(14) The question also arises as to what constitutes E absconding. The word 'absconder' is not defined in the Code of Criminal procedure. It occurs in other provisions of criminal law e.g. Sections 87 and 90(a), Cr. P.C. and ' Section 172 l.P.C. From the context and object of these ..

provisions an absconder may be said to be one who F intentionally makes himself inaccessible to the processes of law. Hence it is not enough if it is shown that it was not possible to trace him soon after the occurrence.

It has also to be established that he was available at or about the time of the commission of the alleged G offence and ceased to be available after the commission of the offence, before he 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 is enough if the material on H

A record shows that these conditions have been fulfilled or

", ...

whether it is necessary that the recording Court should explicitly state that it has so satisfied itself before the deposition is actually recorded."

B Such jurisdictional facts must be existing on this date of passing of the order.

In Shiv Chander Kapoor v. Amar Bose, [(1990) 1 SCC 234] this Court held:- c "12. We have no doubt that the language of Section 21 of the Act clearly forbids the Controller from embarking on an enquiry beyond the ambit of Section 21 itself which may impinge into the sphere of Section 14 of the Act or any other law. We have no hesitation in holding that it is the D existence of the aforesaid jurisdictional facts at the time

;, .

of grant of permission to create a limited tenancy which alone is required to be determined by the Controller, if and when, validity of his permission is assailed at a subsequent stage. This being the scope of his enquiry E while granting permission, the scope of enquiry at the subsequent stage cannot be wider. For this reason any objection to the validity of the permission on a ground other than non-existence of the jurisdictional facts at the time of grant of permission is untenable and beyond the scope of ..

F the Controller's power to examine validity of his earlier permission before directing restoration of possession to the landlord under Section 21 of the Act."

In Man both v. Emperor, [ Al R 1944 Nag 27 4 ], Nazir

G Ahmad vs. Emperor [AIR 1936 PC 253: 17 Lah. 629] and Rustam (supra) was followed.

We must, however, notice that in Bhagwati v. Emperor, [ AIR 1918 All 60 ], the Allahabad High Court held :-

H ''The section nowhere says that the Magistrate must record

JAYENDRA VISHNU THAKUR v. STATE OF 617

MAHARAHSTRA AND ANR. [S.S. SINHA, J.] ...(

a finding. We wish to make it quite clear that in our opinion A a Magistrate before recording evidence under S. 512 ought to be satisfied that the accused is absconding and that there is no immediate prospect of his arrest, and it is certainly advisable that he should recite in his order that he finds this to be the case. However, in this case we find B that the Magistrate had clear evidence that the accused i were absconding, and evidence from which the Magistrate might reasonably infer that there was no immediate prospect of their arrest. In his order he expressly states that he is taking the evidence under S. 512. The presumption c is that the Magistrate did his duty and did not record the evidence under S. 512 unlawfully. In our opinion the mere fact that the learned Magistrate did not recite a finding that there was no immediate prospect of the arrest of the

-- -· accused does not render the evidence inadmissible." D

We, with utmost respect, do not agree. There is no such presumption in law. An order of that nature must exhibit total application of mind. A judicious approach is imperative. For the said purpose the courts must bear in mind that an accused has E a Fundamental Right as also Human Right.

The term 'proved' having been used in the Section, .. providing for an exception to the general rule, was required to ... '-- be strictly construed. It was Dnot an ipse dixit of the Magistrate that would be sufficient for attracting an extra ordinary provision.

The Magistrate was required to apply his mind to arrive at a definitive finding on the basis of the materials on record, in absence whereof, his order must be held to be arbitrary and, thus, without jurisdiction.

G + We may, however, notice that in Janu v. Emperor, [AIR 1947 Sind 122 ], a Division Bench of the Court held :-

"Now, when the section says "if it is proved", we think, it must mean, if it is proved according to evidence, properly, H

A admissible under Evidence Act."

Bhagwati (supra) has been distinguished stating :-

"But reference to that case itself shows that the Magistrate had recorded evidence under the provisions of S. 512. He actually put on the record a finding that the accused had absconded, but did not go on further to say that there vvas no immediate prospect of their arrest. There was, however, evidence on the record from which the Magistrate might have reasonably inferred that there was no immediate prospect of arrest. ........ That case is, indeed, authority for the statement that if evidence is on record that the accused were absconding and there was no immediate prospect of their arrest the absence of a formal finding ton that effect does not invalidate the proceedings. Section 512, indeed does not state that there should be a formal finding.

But obviously S.512 requires that there should be upon record evidence properly admissible under the Evidence Act."

E (See also Ghurbin Bind v. Queen Empress, (1884 (10) I LR Cal 1097 wherein it has been held that the fact of absconding to be alleged, tried and established) ..

We may, at this stage, also notice a decision of this Court in Nirmal Singh v_ State of Haryana, [ (2000) 4 SCC 41 ] F wherein it was held that Section 299 of the Code is in two parts.

In that case the Magistrate, who had recorded the statements under Section 299 of the Code, was examined to indicate that in fact he had recorded the statements. Cross-examination of the said Magistrate was necessary as there was a dispute as G to whether there was any material that the persons whose statements had been recorded were died or not. It was in that context this Court opined :-

"The Magistrate who has recorded the statement under H Section 299 of the Criminal Procedure Code, has been

. -

JAYENDRA VISHNU THAKUR v. STATE OF 619

MAHARAHSTRA AND ANR. [S.B. SINHA, J.] -{ examined to indicate that in fact he has recorded the A statements. He also further contended that the processserver did submit the report that the persons are dead, whereafter the statements recorded under Section 299 Cr

PC were tendered in evidence in the course of trial. It is true that the learned Sessions Judge has not passed any B order to that effect but non-passing of such order would at

1 the most be an irregularity which is curable under Section 465 of the Code of Criminal Procedure, more so, when the accused had not raised any objection at any earlier stage of the proceeding." c

This Court did not say as was contended by Mr. Nafade that non-compliance of Section 299 would be an irregularity.

What was considered to be an irregularity was non recording

-·-; of a statement that the persons concerned were dead. In fact the discussions on Section 299 of the Code and Section 33 of D

the Evidence Act starts from paragraph 4 wherein it was categorically held :-

"Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In E other words, before recording the statement of the witnesses produced by the prosecution, the court must be • satisfied that the accused has absconded or sic (and) that + there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code F of Criminal Procedure. In the case in hand, there is no grievance about non-compliance with any of the requirements of the first part of sub-section (1) of Section 299 Cr PC. When the accused is arrested and put up for trial, if any such deposition of any witness is intended to G +- be used as evidence against the accused in any trial, then

A the court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable.

A The entire argument of Mr Gopal Subramanium, appearing for the appellant is that any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the court concerned must be satisfied and

B record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence >-• or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience c which, under the circumstances would be unreasonable.

In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though according to the prosecution case, it is only after summons ..- .

D being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW- 48/A to PW-48/E. As has been stated earlier, since the law empowers the court to utilise such statements of E persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross-

"'" examining the witnesses, it is, therefore, necessary that the F preconditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions

G precedent therein must be duly established and the prosecution, which proposes to utilise the said statement ... .. as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence."

~ -.,.

' +

J.-

JAYENDRA VISHNU THAKUR v. STATE OF 621

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

17. In this case moreover the appellant had not been A absconding after he was arrested. The term 'absconding' has been defined in several dictionaries. We may refer to some of them.

'Black's Law Dictionary - To depart secretly or suddenly, B esp. to avoid arrest, prosecution or service of process.

P. Ramanatha Aiyarprimary meaning of word is 'to hide'.

Oxford English Dictionary - 'To bide or sow away'.

Words and phrases - clandestine manner/intent to avoid legal process'

In Kartarey v. State of U.P., [ ( 1976) 1 SCC 172 [ this Court held:

"43. Further it is wrong to say that Baljeet never absconded. Contrary to what Baljeet has said in his examination under Section 342 of the Cr PC, the Investigating Officer, PW 7, testified that Baljeet was found hiding in a chhappar in the village from where he was arrested. This account of Baljeet's arrest was not challenged in cross-examination. To be an "absconder" in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home. We therefore, do not find any ground to distinguish the case of Baljeet from that of Sitaram and to treat him differently."

Furthermore for the purpose of invoking Section 299 of the Code the learned Designated Judge was required to hold on the date of passing of the order, namely 1st January, 1994 that he had been absconding on that date.

In view of the nature of evidence which had been brought

A on record, it was not possible for him to hold so, namely -

(a) Letter dated 1st September, 1993

(b) Arrest of the petitioner by Thane Rural Police in FIR

B No.3/92.

(c) I.O's letter dated 25th October, 1993.

"' I (d) Reply dated 1st November, 1993

c (e) Third arrest of the petitioner on 20th November, 1993 in FIR No.237/92 of Manikpur Police Station.

(f) On 20th November, 1993 petitioner was arrested in another FIR No.161/92 in Virar Police Station.

D The learned Designated Judge no doubt issued a """.

proclamation but the same was done in February, 1993. Once a person is arrested and/or is otherwise capable of being brought to court, the proclamation ceases to have any effect.

E Once a person is arrested, he cannot be considered as a proclaimed offender. It is not a law that once a proclaimed offender shall all along be treated to be so. If he had a right to take part in the trial, the trial court was duty bound to provide for the same. In any event the learned Designated Judge did

F not rely on the proclamation made under Section 82 of the Code.

It is in the aforementioned situation, we may consider as to whether sub-section (5) of Section 14 of the Act would be attracted.

G No application has been filed under the aforementioned ~

provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that it was necessary so to do. The condition H precedent therefor was 'if it thinks fit'. For the said purpose he

JAYENDRA VISHNU THAKUR v. STATE OF 623

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

was to record reasons. Such an order could be passed with a A view to continue with the trial.

It may be for a dy or for a few days. The accused ordinarily and subject to just exceptions must be facing the trial.

In other words, the court was required to opine that recording B of evidence is urgent or there existed certain and cogent

reasons which would enable him to record evidence in absence of an accused or his pleader. Recording of reasons is imperative in character. It is the only safeguard which had been provided to check an arbitrary exercise of power. It expressly c preserves the right of the accused to recall the witness for cross-examination. It does not contemplate a situation like the one under Section 299 of the Code. By reason of the said provision even the relevance of the evidence as envisaged

-~ -. under Section 33 of the Evidence , A.ct is not taken away.

D We must place on record that there are enough materials on the record to show that the appellant had made all attempts to be tried alongwith other accused persons. He in fact moved this Court under Article 32 of the Constitution of India for the aforementioned purpose wherein, on 23rd November, 1993 an E order was passed stating :-

~ "Leave granted ,._

After hearing the learned Additional Solicitor General F and Mr. P. Chidambram, senior counsel appearing on behalf of State ando petitioner, accused respectively, we i. pass the following order with the consent of the parties.

The Presiding Judge of the Designated Court, Pune is directed to expedite the hearing of the case and G

~- consider the feasibility of framing of charges or otherwise before 13th December, 1993 after splitting up the case with regard to the absconding accused, if any, and commence the trial from 14th December, 1993 and examine witnesses on day to day basis. Both the parties have agreed that they H

' A will not be taking any adjournment on any ground and on

the other, they will fully cooperate in the trial of the case.

The Presiding Judge of the Designated Court is further directed to examine the material witnesses first in the order and thereafter the other remaini.nQ witness.

B This order is without prejudice to the rights and contentions of the parties to urge any legal point including

" jurisdiction of the Designated Court." I

c The said order was passed in the case of the appellant himself. If he did not want to stand his trial at that stage, the question of issuance of the said direction did not arise. Even the question of splitting of the case with regard to the absconding accused did not arise. Appellant being agreeable not to take adjournment on any ground and his undertaking to D fully cooperate in the trial of the case could not arise if he would ,., -

not have been standing trial. The effort on the part of the appellant to be produced before the TADA Court is evident from the fact that not only he filed an application in that behalf before the Delhi High Court, he even filed several applications E Din the pending proceedings. The High Court by its order dated 19th December, 1994 directed :-

"The prayer made in this petition is that respondent No.4, who is required to face trial in a Court in Maharashtra -+

F should be transferred to that court. The petitioner forgets .. that respondent No.4 is facing a trial in a serious offences in Delhi. It is obvious that unless one trial is over, that other trial cannot take place. Respondent No.4 cannot be shifted from place to another so that trials can take place

G simultaneously. The interest of the petitioner, Maharashtra State are well protected by making entries in the challan of respondent No.4 in jail record as well as in record of court where respondent No.4 is facing trial in Delhi that has not to be released till any order is made by a competent

H court in Maharashtra with regard to the case pending in

JAYENDRA VISHNU THAKUR v. STATE OF 625

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

( that Court. As soon as the trial at Delhi completes, A respondent No.4 shall be transferred to the jurisdiction of the court at Maharashtra where he is to face the trial. The Delhi Court shall take expeditious steps to complete the trial at an early date. With these observations, we dispose of this petition.

Copy of this order be sent to Chief Metropolitan Magistrate, to TADA Court where respondent No.4 is facing the trial and also to Supdt. Jail and to Designated Court in Pune." c

Thus, he, for all intent and purport, made subject to the jurisdiction of the Pune TADA Court as well.

Mr. Nafade would submit that having regard to the fact that

- -.. the appellant having filed several applications before the TADA D Court, could have also questioned the legality of the order dated 1st January, 1994. Such an occasion, in our opinion, did not arise particularly having regard to the nature of the order passed therein.

An accused ordinarily would not be presumed to have E

waived his right. The procedural principles like estoppel or waiver would not be attracted where an order is passed without

*" jurisdiction as the same would be a nullity. An order which is a

nullity cannot be brought into effect for invoking the principles F like estoppel, waiver or res judicata. [See Chief Justice of Andhra Pradesh & anr. vs. L. V.A. Dikshitulu & ors. (AIR 1979 SC 193 at 198)]

A bare perusal of the provisions of Section 299 of the Code and Section 14(5) of TADA it would be evident that they G operate in different fields. The ingredients of the said provisions are different. Materials, which are, thus, required to be brought on record by the prosecution for application of the aforementioned provisions may be different, although they may be overlapping to some extent.

A In this case the learned Public Prosecutor must be of the opinion that it was not a case where Section 14(5) of TADA shall apply, having regard to the fact that neither the accused nor his pleader was before the Court. Although we do not intend to pronounce finally on the point, but it appears to us that B Section 14(5) of TADA would be attracted only when the accused is facing trial and/or otherwise represented through his advocate. If neither the accused nor his pleader had an occasion to be before the Court, sub-section (5) of Section 14 may not be held to have any application. c There is another aspect of the matter which cannot be lost sight of. No chc::rge-sheet was filed against the appellant. In the charge-sheet dated 27th August, 1993, rightly or wrongly, he had been shown as absconding. In the absence of any chargesheet no cognizance could have been taken against him in the D sense that he could not have been directed to stand trial. . It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him. Undoubtedly in the order dated 30th December, 1993, while framing charges his E name had been shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in the trial. He was arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003.

F We have noticed hereinbefore the respective dates of death of the witnesses concerned. All the witnesses expired prior thereto. The question of his exercising his right to crossexamine the said witnesses would have arisen only after the G said date and not prior thereto. It is, in our opinion, incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial. In that view of the matter we are also of the opinion that it was not a case wherein sub-section (5) of Section 14 of H the Act would have been attracted since the order of the TADA

JAYENDRA VISHNU THAKUR v. STATE OF 627

MAHARAHSTRA AND ANR. [S.B. SINHA, J.] .( Court specifically invoked Section 299 of the Code.

We have proceeded on the basis that the right of confrontation is not a fundamental right or whereby accused's fundamental right has not been breached. Article 21, however, envisages a fair trial ; a fair procedure and a fair investigation.

B By reason of such a right alone the appellant was entitled not only to be informed about his fundamental right and statutory .... rights but it was obligatory on the part of the Special Public • Prosecutor to place on record all the requisite materials before the learned Designated Judge to show that the appellant, after c his arrest in Delhi case on 23rd July, 1993 was Dnot an absconder and thus the provisions of Section 299 of the Code was not attracted.

Mr. Nafade sought to place before us to the gravity of the

. -·-, i offence. He has drawn our attention to the fact that this Court D on an appeal preferred by the complainant reversed the judgment of acquittal passed by the TADA Court against other

accused except six accused against whom there was no direct allegation of murder.

E In Noor Aga v. State of Punjab [2008 (9) SCALE 691] this Court while dealing with a similar draconian statute, held :- • "44. The Act contains draconian provisions. It must, .),.

however, be borne in mind that the Act was enacted having F regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned G provisions unconstitutional.

45 A rig ht to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international H

conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.

46. A Fundamental Right is not absolute in terms.

47. It is the consistent view of this Court that 'reason to believe', as provided in several provisions of the Act and as defined in Section 26 of the Indian Penal Code, on the part of the officer concerned is essentially a question of fact.

48. The procedures laid down under the Act being stringent in nature, however, must be strictly complied with.

It was further held :-

"52. Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced.

53. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil

of the State's responsibility to protect innocent citizens." -+

This Court in Kartar Singh v. State of Punjab, (1994) 3 sec 569 has held :-

"278 .... It is the jurisprudence of law that crossexamination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are :

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

JAYENDRA VISHNU THAKUR v. STATE OF 629

.s

MAHARAHSTRA AND ANR. [S.B. SINHA, J.]

(2) to elicit facts in favour of the crossexamining lawyer's A client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;

and the questions to be addressed in the course of cross- 8

examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character."

[See also Cho/an Roadways Ltd. v. G. Thirugnanasc ambandam, (2005) 3 sec 241 ].

In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel

.---.o and others, I (2008) 4 sec 649, this Court observed :-

"32. The provisions contained in Section 82 of the Code D

of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which E was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the

~ property despite the fact that the absconding accused had ... surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is F no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests G with the State subject to any order passed under Section 85 of the Code. It cannot be a subject-matter of execution ofD a decree, far less for executing the decree of a third party, who had no right, title or interest thereon." H

A Mr. Nafade would submit that the appellant did not suffer

any prejudice. We do not agree. Infringement of such a valuable right itselfcauses prejudice. In S.L. Kapoor v. Jagmohan, [

(1980) 4 SCC 379], this Court clearly held :-

"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed.

The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

In A.R. Antu/ay v. R.S. Nayak and another, [ (1988) 2 sec 602 ] a seven Judge Bench of this Court has also held D that when an order has been passed in violation of a

fundamental right or in breach of the principles of natural justice, the same would be nullity. {See also State of Haryana v. State of Punjab, [(2004) 12 SCC 673] and Rajasthan State Road Transport Corporation and others v. Zakir Hussain, [(2005) 7 E sec 447]}

18. For the reasons aforesaid the impugned order cannot be sustained. It is set aside accordingly. The appeal is allowed.

G.N.

Appeal allowed.