ABDUL ROB Vs. STATE OF ASSAM

JUDGEMENT

(1.) The order under challenge, in the present revision, was passed, on 28 .7.2003, by the learned Sessions Judge, Morigaon, in Sessions Case No. 95/2002, whereby the learned Sessions Judge heJd to the effect that to the facts and circumstances of the Sessions Case, in question, the provisions of Section 299 Cr.PC were applicable. With the conclusion so reached, the learned Sessions Judge has allowed the prosecution to tender the evidence which was, in the absence of the accused-petitioner, recorded in the trial of the co-accused.

(2.) I have heard Mr. M. U. Mahmud, learned counsel for the accused-petitioner, and Mr. B: S.Sinha, learned Additional Public Prosecutor; Assam.

(3.) Before discussing the legality, correctnets or propriety of the order, dated 28.7.2003, aforementioned, some material facts and various stages, which have led to the passing of the impugned order, may be noticed as follows : A written Ejahar was filed at Jagiroad Police Station, on 22.10.90, by the complainant (hereinafter referred to as 'S') alleging, inter alia, that on the previous night i.e., on 21.10.99, accused Jamaluddin, Abdul Rob and Boka @ Ajit Roy had forcibly entered into the house of the complainant and committed gang rape on her. Based on this Ejahar and treating the same as the FIR, Jagiroad Police Station case No. 125/91 under Section 376/34 IPC was registered against the three persons, who were named as accused by the informant. During the course of investigation of the case, while accused Jamaluddin and accused Boka were arrested and produced before the Chief Judicial Magistrate, Morigaon, the remaining accused, namely, accused Abdul Rob (i.e., the present petitioner) was not arrested. On completion of the investigation, police submitted charge-sheet, on 23.6.94, showing the present accused- petitioner as absconder. The Chief Judicial Magistrate, Morigaon, then, issued warrant of arrest and also warrant of Proclamation and Attachment against the accused-petitioner; but the same could not be executed, where upon the police officer, who was responsible for execution of the warrant of arrest and also the warrant of Proclamation and Attachment, was examined by the Chief Judicial Magistrate on 15.3.1995.On being satisfied that the accused-petitioner had absconded and he could not be apprehended, the Chief Judicial Magistrate passed an order, on 15.3.95, declaring the accused as an absconder. However, on appearance of accused Jamaluddin, the case was committed to the Court of Sessions for trial. The Sessions Case No. 42/99 came to be accordingly registered for trial.