Case Note & Summary
The applicant, Anil Lodha, was the original complainant in CR No.72/2003 registered at Nandurbar Police Station for offences under Sections 302, 323, 504, 506 read with 34 IPC, concerning the murder of his brother Parasmal Lodha. The complaint was lodged against four persons: Ratansing Rathod, Gajendrasing, Madhavsing, and Pepsi @ Pushpendrasing. Ratansing Rathod was arrested on 02/09/2003 and remained in custody until 31/10/2003, when the charge sheet was filed. The other three accused were not arrested and were shown as wanted in the charge sheet under Section 173 Cr.P.C. and in the committal order. The case was committed to the Sessions Court as Sessions Case No.43/2003. Ratansing Rathod was released on bail on 31/10/2003. During the trial, a Special Public Prosecutor was appointed at the request of the complainant. The trial court, by order below Exh.38, refused an application moved by the Special Public Prosecutor to take steps under Sections 70, 82, and 83 Cr.P.C. against the absconding accused before recording evidence under Section 299 Cr.P.C. The applicant challenged this order under Sections 482 and 483 Cr.P.C. The High Court held that the trial court's order was illegal and contrary to law, as the provisions of Sections 82 and 83 Cr.P.C. are mandatory before recording evidence under Section 299 Cr.P.C. The court allowed the application, set aside the impugned order, and directed the trial court to issue process under Sections 82 and 83 Cr.P.C. against the absconding accused and then proceed under Section 299 Cr.P.C.
Headnote
A) Criminal Procedure - Absconding Accused - Sections 82, 83, 299, 482 Cr.P.C. - Mandatory Steps Before Recording Evidence - The trial court must issue proclamation under Section 82 and attachment under Section 83 Cr.P.C. before recording evidence under Section 299 Cr.P.C. against absconding accused. The court held that the order refusing to take such steps was illegal and set aside, directing the trial court to comply with the provisions. (Paras 1-6)
B) Criminal Procedure - Inherent Powers - Section 482 Cr.P.C. - Quashing of Illegal Order - The High Court can exercise inherent powers to set aside an order that is contrary to law and causes miscarriage of justice. The court allowed the application under Section 482 Cr.P.C. to quash the trial court's order. (Paras 1-6)
Issue of Consideration
Whether the trial court was justified in refusing to issue process under Sections 82 and 83 Cr.P.C. against absconding accused before recording evidence under Section 299 Cr.P.C.
Final Decision
The application is allowed. The order below Exh.38 passed by the Additional Sessions Judge, Nandurbar in Sessions Case No.43/2003 is set aside. The trial court is directed to issue process under Sections 82 and 83 Cr.P.C. against the absconding accused and then proceed under Section 299 Cr.P.C. Rule made absolute accordingly.
Law Points
- Sections 82 and 83 Cr.P.C. are mandatory before recording evidence under Section 299 Cr.P.C.
- duty of court to ensure compliance
- inherent powers under Section 482 Cr.P.C.
Case Details
2010 LawText (BOM) (01) 109
Criminal Application No.4151 of 2009
Mr. R.R. Mantri for applicant, Mr. N.R. Shaikh for respondent State
Anil S/o. Khushalchand Lodha
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Nature of Litigation
Criminal application under Sections 482 and 483 Cr.P.C. challenging the trial court's order refusing to issue process under Sections 82 and 83 Cr.P.C. against absconding accused before recording evidence under Section 299 Cr.P.C.
Remedy Sought
The applicant sought to set aside the order below Exh.38 passed by the Additional Sessions Judge, Nandurbar, and to direct the trial court to take steps under Sections 70, 82, and 83 Cr.P.C. before recording evidence under Section 299 Cr.P.C.
Filing Reason
The trial court refused to issue proclamation and attachment against three absconding accused before recording evidence under Section 299 Cr.P.C., which the applicant contended was illegal and contrary to law.
Previous Decisions
The trial court passed the order below Exh.38 refusing the application of the Special Public Prosecutor to take steps under Sections 70, 82, and 83 Cr.P.C. before recording evidence under Section 299 Cr.P.C.
Issues
Whether the trial court was justified in refusing to issue process under Sections 82 and 83 Cr.P.C. against absconding accused before recording evidence under Section 299 Cr.P.C.
Whether the order passed by the trial court is illegal and liable to be set aside under Section 482 Cr.P.C.
Submissions/Arguments
The applicant argued that the trial court's order was illegal as Sections 82 and 83 Cr.P.C. are mandatory before recording evidence under Section 299 Cr.P.C.
The respondent State supported the applicant's contention.
Ratio Decidendi
Before recording evidence under Section 299 Cr.P.C. against absconding accused, the court must first issue proclamation under Section 82 and attachment under Section 83 Cr.P.C. These provisions are mandatory and failure to comply renders the trial court's order illegal.
Judgment Excerpts
By the present application u/s. 482 and 483 of Cr.P.C., the applicant/original complainant in CR No.72/2003... has approached this Court to challenge the legality and validity of the order passed below Exh.38...
The trial court must issue process under Sections 82 and 83 Cr.P.C. before recording evidence under Section 299 Cr.P.C.
Procedural History
On 01/06/2003, an offence was registered as CR No.72/2003 at Nandurbar Police Station. On 02/09/2003, accused Ratansing Rathod was arrested. On 31/10/2003, charge sheet was filed and Ratansing was released on bail. The case was committed to Sessions Court as Sessions Case No.43/2003. During trial, the Special Public Prosecutor moved an application below Exh.38 to take steps under Sections 70, 82, and 83 Cr.P.C. before recording evidence under Section 299 Cr.P.C. The trial court refused the application. The applicant then filed Criminal Application No.4151 of 2009 under Sections 482 and 483 Cr.P.C. before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 70, 82, 83, 173, 299, 482, 483
- Indian Penal Code, 1860 (IPC): 302, 323, 504, 506, 34
