STATE OF MYSORE Vs. ANTEN BASTYNAV VANIYACHE SIDDI

JUDGEMENT

(1.) This is a reference made under S.438 Cr.P.C. by the Sessions Judge, North Kanara, Karwar praying that the order of commitment passed by the Judicial Magistrate First Class, Haliyal, in CC.No.1103/1971 against Anten Bastyanv Vaniyache Siddi be quashed.

(2.) The police charge sheeted Anten Bastyany Vaniyache Siddi for the offence under S.302 IPC. Anten Bastyanv Siddi was shown to be absconding. The Magistrate took all the steps provided in Chapter VI Cr.P.C. to secure the presence of the absconding accused. It was conclusively tound that he was absconding. Thereafter, a child witness was produced before the Magistrate and the prosecution requested that her evidence be recorded under the provisions of S.512 Cr.P.C. The Magistrate recorded her evidence and thereafter he passed an order of commitment committing the accused to the Court of Sessions at Karwar for taking his trial for the offence under S.302 IPC. The learned Sessions Judge has in this reference stated that the order of commitment is not sustainable in law.

(3.) Sri Nagappa, learned Advocate appearing on behalf of the State, supports the reference. In our opinion, the law does not contemplate passing of an order of committing of an accused to the Court of Sessions, in the absence of the accused. S.207A (4) Cr.P.C. provides for taking of the evidence in committal enquiries. S.353 Cr.P.C. lays down that evidence will have to be recorded in the presence of the accused or when his personal attendance is dispensed with, in the presence of the Pleader of the accused. S.512 Cr.P.C. is provided by way of exception, in the interest of preserving evidence even when the accused is absconding. It lays dowr that if it is proved that an accused person is absconding, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record deposition. It further lays down that such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into or trial if the deponent is dead or incapable of attending the Court, for the reasons mentioned in S.512 Cr.P.C. A plain reading of S.512 Cr.P.C. makes it manifest that it is a provision enabing the Court to record evidence in the absence of accused when it is found that he is absconding. S.353 Cr.P.C. mentioned above makes an exception that except as otherwise expressly provided all evidence should be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of the Pleader of the accused. S.512 is one of such exceptions, but by the very provisions it is made clear that the evidence of witnesses recorded under S 512 Cr.P.C. cannot be used against the accused after his arrest unless certain conditions mentioned above, are satisfied. It is therefore certain that merely because the evidence is recorded under S.512 Cr.P C., a Magistrate holding committal enquiry under S.207A, cannot proceed to pass an order of commitment without observing the further procedure provided in sub-sees. (5) to (14) of Section 207A Cr.P.C.