LAWS(PAT)-2000-2-139

ARUN KUMAR SINGH Vs. TRIBHUWAN PRASAD BARNWAL

Decided On February 14, 2000
ARUN KUMAR SINGH Appellant
V/S
Tribhuwan Prasad Barnwal Respondents

JUDGEMENT

(1.) THE present reference has been made by Judicial Magistrate, 1st class, Patnacity. The points of reference are as follows:

(2.) THE facts necessary for disposal of the aforesaid two questions referred by the trial court are that a case under Section 498A was registered against 15 accused persons. Eleven accused persons appeared and the four accused persons including Tribhuwan Prasad Burnwal, who has apprehended later on were absconding. On 15.7.94 four accused were absconding. The trial court proceeded against 11 accused persons and ordered for issuance of permanent warrant of arrest against the absconding accused persons including Tribhuwan Prasad.

(3.) WITH regard to point no. 1 it is to be stated that the general rule is that the witnesses are to be examined in presence of the accused and an opportunity to cross examine should be provided to him. Section 299 Cr. P. C. is an exception to the said Rule. It provides inter alia that if an accused person has absconded, and that there is no immediate prospect of arresting him, then 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 their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. In other words, the requirement is that the evidence recorded behind the back of the accused can be taken into consideration on fulfilment of the two conditions namely that the accused was absconding and there is no immediate prospect of his arrest and secondly that the said evidence can be taken in evidence only when the witnesses are already dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any delay, expense or inconvenience.