SIVANTHIAPPAN Vs. MADURAI GANESAN

JUDGEMENT

(1.) The petitioners are A.2 to A.9 in Special C.C.No.1 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, Poonamallee, Chennai. In the above criminal original petition No.29075 of 2003 the petitioner/A.8 would pray to call for the records relating to the recording of the evidence of P.W.1 on 21.8.2003 in the said case and quash the same. In the second criminal original petition No.29076 of 2003, the petitioners/A.2 to A.9 would pray to call for the records relating to Crl.M.P.No.68 of 2003 in Special C.C.No.1 of 2003 and direct the Special Court under Prevention of Terrorism Act at Poonamallee, Chennai to consider and dispose the same and thereafter proceed with the examination of witnesses in the said case.

(2.) On a perusal of the materials placed on record, it comes to be known that the petitioners are A.2 to A.9 in Special C.C.No.1 of 2003 on the file of the Special Court under the Prevention of Terrorism Act at Poonamallee, Chennai, for the offences punishable under Sections 21(2)(a) and (4) of the Prevention of Terrorism Act, 2002 (hereinafter referred to as POTA) against A.4 to A.8 and under Section 21(3)(4) of POTA against A.1 to A.3. It further comes to be known that they have all filed Crl.M.P.Nos.23 to 25 of 2003 under Section 227 Cr.P.C. praying to discharge them from the criminal proceedings but the same have been dismissed on 15.7.2003 by the Special Court and after dismissing the said discharge petitions, they have preferred Criminal Appeal Nos.1224 to 1226 of 2003 respectively under Section 34 of the POTA, which were admitted by the Division Bench of this Court on 18.8.2003.

(3.) In the first criminal original petition, the petitioner/A.8 would submit that he was produced before the Special Court on 25.7.2003 from Central Prison, Madurai and the learned Judge framed the charges and fixed 21.8.2003 as the date for the examination of witnesses; that on 20.8.2003, he suffered from diarrhoea and was admitted as inpatient in the Prison Hospital, Madurai and therefore he could not be produced before the Court and since even his counsel did not have instructions, he could not file any petition under Section 317 Cr.P.C. and the learned Judge, even though no petition under Section 317 Cr.P.C. was filed and the counsel on record reported no instruction from the petitioner, the learned Judge proceeded with the examination of the P.W.1 on 21.8.2003 informing the counsel that Section 273 empowers to proceed with trial in the absence of the accused. The petitioner, branding the said act of the learned Judge as illegal, has come forward to file the above petition. The petitioner would further submit that as per Section 29(5) of POTA, if the trial Court thinks it, for reasons to be recorded, can record the evidence in the absence of the accused or his pleader; that on 21.8.2003, the counsel who entered their appearance at the pre-trial stage reported the court that they have no instruction which amounts that the counsel no more represented the accused for which the memo. of appearance was filed earlier and therefore the counsel on record could not be the pleader of the accused, the moment no instruction was reported; that the presence of the same counsel as counsel to some other accused could not be treated as appearance for the absentee accused also; that no provision of law empowers the trial court to proceed with the trial in the absence of the accused and his counsel.