MANOJ T.K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the accused in Crime No.231/2022 of Payyannur Police Station, Kannur registered alleging commission of offences under Ss. 354 A (1), 354 B, 354 (D)(1)(i), 511, 376 of the Indian Penal Code and Sec. 10 read with 9 (f) (l) (p) and Sec. 12 read with 11 (iv) of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). Following the investigation, a final report was filed. Charges were framed against the accused under Ss. 354 A (1)(1), 354 D (9),(l),(i), 511 read with 376 of the Indian Penal Code and Sec. 9 read with (I), (f), (p), (m) Ss. 10, 11 read with Sec. 12 of the POCSO Act on 9/8/2023. Following the framing of charges, a summons was issued to CW1 (the victim in the case), and the case was adjourned to 21/9/2023. On 21/9/2023, the petitioner / accused was present in court. However, CW1 was absent. Therefore, a summons was issued to CW2, and a bailable warrant was issued to CW1. The matter was adjourned to be listed on 16/10/2023. On 16/10/2023, the petitioner / accused appeared through counsel and filed Annexure-A4 application numbered as CMP No.466/2023 seeking to condone the absence of the accused on that date (on medical grounds) and praying that the case be adjourned to any date after three weeks. The Special Court proceeded to record the chief examination of CW1, who was examined as PW1. Annexure-A4 petition was allowed on costs of Rs.3,500.00 and the matter was adjourned to 8/11/2023 for the cross-examination of PW1. CW2, who was also present on the summons, was bound over on account of lack of time. The petitioner has approached this court challenging the proceedings of the Fast Track Special Court, Thaliparamaba, in examining PW1 in the absence of the petitioner. According to the petitioner, PW1 could not have been examined in his absence going by the mandate of Sec. 273 of the Code of Criminal Procedure (Cr.P.C). This Crl. M.C has been filed under Sec. 482 Cr.P.C seeking a direction to the Fast Track Special Court, Thaliparamba, to examine PW1 'in the presence of the petitioner ignore/deleting the evidence already taken in the absence of the petitioner in S.C No.392/2022 pending before the Fast Track Special Court, Thaliparamba."

(2.) Sri. S. Aravind, the learned counsel for the petitioner / accused, refers to the provisions of Sec. 273 Cr.P.C to contend that it is the mandate of Sec. 273 that the recording of evidence in a criminal trial shall be in the presence of the accused. It is submitted with reference to the provisions of Ss. 299 and 317 of the Cr.P.C that it is only when the personal appearance of the accused is dispensed with in the circumstances contemplated by those provisions that the deposition of witnesses can be recorded in the absence of the accused. It is submitted that the language of Sec. 273 Cr.P.C admits of no other interpretation. The learned counsel placed considerable reliance on the judgment of the Supreme Court in Atma Ram and others v. State of Rajasthan; (2019) 20 SCC 481 in support of this proposition. The learned counsel has also referred to the judgments of this court in Bhanujan v Jayabhanu; 1993 (2) KLT 889, Alice George v. Deputy Commissioner of Police; 2003 (1) KLT 339, Raju T.P. v. State of Kerala; 2009 (3) KHC 14 and Arun Baby v. State of Kerala and another; 2021 (3) KLT OnLine 1014. The learned counsel has also referred to the judgment of the Supreme Court in Mydeen A.T and another v Assistant Commissioner, Customs Department; 2021 (5) KLT OnLine 1177.

(3.) Sri. Vipin Narayanan, the learned Senior Public Prosecutor on the other hand submits that there is absolutely no illegality in the procedure adopted by the learned Special Judge in permitting the examination in chief of PW1 in the absence of the petitioner / accused. The learned Public Prosecutor referred to the provisions of Sec. 309 Cr.P.C to contend that the provisions of that Sec. indicate that when witnesses are in attendance no adjournment or postponement shall be granted without examining them except for special reasons to be recorded in writing. The learned Public Prosecutor has placed reliance on the judgment of the Supreme Court in Bhaskar Industries Ltd. v Bhiwani Denim and Apparels Ltd and others; (2001) 7 SCC 401 to contend that the provisions of Sec. 273 Cr.P.C do not create an absolute bar in the recording of evidence in the absence of the accused. It is submitted that the aforesaid decision is authority for the proposition that when the accused has been granted exemption from attending the court, evidence can be recorded in the absence of the accused also. The learned Public Prosecutor has also placed reliance on the judgment of the Supreme Court in Puneet Dalmia v. Central Bureau of Investigation, Hydrabad; AIR 2020 SC 214, State of U.P v. Shambhu Nath Singh and others; (2001) 4 SCC 667 and Mukesh Singh v. The State of Uttar Pradesh and another; 2022 LiveLaw (SC) 826 in support of his contention.