"It will be noticed that both under Section 193 and Section 209, the commitment is of 'the case' and not of 'the accused".
Thus, it is the case which is committed and not the accused. Once the case has been committed, the absconding accused have to appear or brought before the sessions Court and the Sessions Judge is competent to remand him. The learned sessions Court should have proceeded against such accused as per the provisions for sessions trial, he erred in remanding back the case to committing Court and thus delayed the trial.
Jharkhand High Court
Gagan Thakur vs State Of Jharkhand And Ors. on 22 December, 2003
Equivalent citations: 2004 (1) BLJR 415, 2004 CriLJ 1910
1. The following questions require to be answered in this writ petition :
Whether the case of an absconding accused can be committed under Section 209, Cr PC along with the accused who have already appeared before the committing Court and whether the remand to judicial custody by the sessions Court of the absconding accused, when he appears before that Court is illegal and consequently whether the absconder is entitled to compensation for illegal detention?
2. The questions aforesaid arise out of the short fact that in Hussainabad P.S. Case No. 97/1997 dated 27.10.1997, G.R. Case No. 1395/97 in the Court of Chief Judicial Magistrate, Daltanganj, charge-sheet was submitted against some of the accused and some accused were shown as absconders. One of the absconding accused is the petitioner in this writ petition. By order dated 18.7.2000, the case was committed to the Court of sessions and the absconding accused were declared absconders and permanent warrant of arrest was issued against them and the commitment was notified to the Public Prosecutor and the record of the case was sent to the Sessions Judge, Palamau. It appears that thereafter ST. No. 349/2000 was started in the Court of Sessions Judge, Daltanganj. The order dated 2.8.2000 shows that the case of some of the accused were committed on notification whereas the petitioner was shown absconding. The case was fixed after appearance. This was for the appearance of those accused also who had appeared and whose case has been committed. The petitioner was arrested on 31.1.2001 and was produced before the Sessions Court and 2nd Asst. Sessions Judge, to whom the case was transferred by the learned Sessions Judge had framed the charge against the petitioner on 30.4.2002. Then by order dated 14.11.2002 the learned Asst. Sessions Judge noticed that the case of this petitioner as well as some others has not been committed to the Court of sessions and consequently he directed that the accused whose case were not committed and were in jail custody should be produced in the G.R. case and the accused whose case was not committed but were on bail should make pairvi in the G.R. Case. Thereafter, the learned Asst. Sessions Judge proceeded with the trial of the accused whose case has been committed to the Court of sessions and ultimately, it transpires that those accused who he tried were acquitted. It is found that by the order dated 21.8.2000, the learned Sessions Judge had directed the issuance of warrant of arrest, non-bailable, along with the processes under Section 82, Cr PC against absconding accused, fixing 14.9.2000 for their appearance and it appears that the petitioner was arrested on the aforesaid date and he was remanded to jail custody by the 2nd Asstt. Sessions Judge and till the date of the order by which he was directed to be produced before the G.R. Court, he used to be remanded to custody on different dates by the Asstt. Sessions Judge.
3. The learned counsel appearing for the petitioner, relying on the decisions rendered in the case of 1997 Cr LJ 4627 (Karnataka) and 1989 Cr LJ 2470 (Orissa), argued that without complying with the provisions of Section 207 and 208, as the case may be, no commitment can be ordered and when the accused was absconder, the question of complying with these provisions does not arise; therefore, commitment of the petitioner along with the appearing accused was not legal.
4. The police papers supplied under Section 207 or 208 serves two purposes,--(i) on the basis of these papers, the accused can take a plea before the committing Court that the offence is not exclusively triable by the Court of sessions and so no commitment is required and (ii) these papers will help him in cross-examining the witnesses during trial.
5. The Magistrate under Section 209, Cr PC though, has a narrow inspection hole, yet the accused cannot be precluded from making a submission that the case is not exclusively triable by the Court of sessions, but if the Magistrate, after considering the submission of even one appearing accused, absconds other accused notwithstanding, holds that the case is exclusively triable by the Court of sessions, then the Magistrate cannot recall or review that decision, as he lacks such power, even when other absconding accused appear or are brought later and make such a plea. In such a situation, the utility of police paper to absconding accused, who appear or are brought subsequently, is only this much that these can be used during trial. Thus, an absconding accused is not prejudiced at this stage in absence of prosecution papers. If all the accused are absconding, then the issue whether the offence is exclusively triable by the Court of sessions rests undecided and can be pleaded only after appearance of one or all the absconders, then the case of all the absconding accused without appearance of any will prejudice the absconding accused as they will be deprived of a valuable right. But if one accused appears/brought and this issue is decided, no prejudice is to be caused to absconding accused, if the case is committed along with the appearing accused, without complying the provisions of Section 207 or 208 in their respect as the statutory purpose of supplying these documents is not defeated.
6. Section 209, Cr PC does not envisage splitting of case of absconders and appearing accused. The splitting is thus a practical solution to ensure speedy trial of the appearing accused. Section 209(c) provides for sending the records of the case and other documents and even material exhibits. If with the commitment of a single accused, these things are to be sent up to sessions Court, then the committing Magistrate is legally left with no case record of document or exhibit. conduct the case. This does not state "case of appearing accused."
7. The petitioner having been declared absconder, the cognizance is not under challenge in this writ petition. Section 209 does not speak the word 'absconder' and does not make a provision for their commitment. The question is whether the absconders who evaded the process and those accused who have readily made themselves amenable to process of their appearance are at par? Though no law is there to infer such distinction, but Section 299, Cr PC gives some cue. Section 299 is in derogation of Section 273, Cr PC but its justification lies in accused' default to take part in trial. The law does not encourage abscondence, neither does it encourage multiplicity of proceeding arising out of the same offence. The splitting up of cases leave scope for many splittings, depending upon the number and will of absconders. This is, thus, a misuse of process of Court manipulated by absconders and can tend to failure of justice or its miscarriage. To illustrate, I found that in Cr Appeal No. 1431/02, the main case was split up. The informant appeared at trial and said that he identified two dacoits and took their names (one of the two was absconder and the one was facing trial) and when the case of absconding accused was committed and he was put on trial, the same witness said he had identified none. Such are likely to be the ill-effect of splitting up.
8. If all the accused are absconding, the committing Magistrate can record the evidence in their absence under Section 299, Cr PC, but if one accused has been committed, then the evidence against him will be recorded by the competent trial Court at the same time against the remaining absconding accused, otherwise, the same set of witnesses has to appear at two forums to their harassment, and has to appear again if not covered by provisions of Section 299, Cr PC.
9. Absconding accused cannot be given premium to frustrate the justice or to misuse the process of law by treating them at par with those accused who have shown respect for legal processes and have appeared and have not evaded their arrest.
10. It has already been stated above that in the event of commitment of one accused, the other absconding accused can use the prosecution papers during trial, so the only care to be taken is that at the time of facing, trial, whenever do they appear, the prosecution papers are made available to them and this can be done by attaching these papers with the record sent to the sessions Court for their being supplied as and when the absconders do appear.
11. The Karnataka and Orissa judgment do give practical suggestion of splitting up the cases, though not envisaged in Section 209. This suggestion does not take into account the ill- effects of the solution; therefore, I humbly differ with these decisions. The Apex Court in case of State of Kerala v. Mathai Verghese, reported in AIR 1987 SC 33, held as follows :--
"A Court an make a purposeful interpretation so as to 'effectuate' the intention of the legislature and not a purposeless one in order to 'defeat' the intention of the legislators wholly or in part."
The main concern should be that the statutory object of a particular section is not defeated and no prejudice is caused to accused. If no prejudice can be traced, then rigid compliance of a provisions is mere empty formality and may be ignored.
12. The Full Bench of Patna High Court reported in1985 Cr LJ 1238 (Pat), was discussing the provision of Section 319, Cr PC and found that the accused who were suspended on evidence could be summoned and sessions Court took cognizance, but the Full Bench relied upon a decision rendered in the case of Joginder Singh v. State of Punjab, reported in 1979 Cr LJ 33, and quoted as under:--
"It will be noticed that both under Section 193 and Section 209, the commitment is of 'the case' and not of 'the accused".
Thus, it is the case which is committed and not the accused. Once the case has been committed, the absconding accused have to appear or brought before the sessions Court and the Sessions Judge is competent to remand him. The learned sessions Court should have proceeded against such accused as per the provisions for sessions trial, he erred in remanding back the case to committing Court and thus delayed the trial.
13. In the result, I do not find any illegality in remand by the Sessions Court. Consequently, it was not illegal and the question of compensation does not arise. This writ petition is dismissed.
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