MANBODH Vs. EMPEROR

JUDGEMENT

(1.) THE accused Manbodh has been convicted of the murder of one Dukhuwa Teli and has been sentenced to death. The murder occurred on 26th February 1932 more than 11J years before the prosecution. The incident occurred about 8 or 9 o'clock in the morning and was reported on the same day. The appellant was mentioned as the murderer. But he absconded from the village and was untraceable till he returned of his accord on 1st March 1943: (see Quammrujjamma Khan (P. W. 6)). It appears that he had some sort of idea that the 12 years rule of limitation applied in the case of criminal offences because he told Patwari Kotwar (P. W. 1) when he returned: "Now I am safe, 12 years have passed." At the time of the murder, Kishorilall (P. W. 18) was the Station House Officer of the area in question and he took charge of the investigation. As the accused had absconded he put up a challan under Section 512, Criminal P.C., and proceedings were started in the absence of the accused. Certain witnesses were examined, among them H.R. Naidu (P. W. 5), Lachhman (P. W. 7) and Ramphal (P. W. 14). It is proved, and also admitted, that Lachhman is dead. As regards the other two the prosecution allege they cannot be found and Quammrujjamma Khan (P. W. 6) has been called to prove this fact. The prosecution, therefore, want to use this evidence in the present trial under Section 512, Criminal P.C. The defence object and contend that the evidence is inadmissible because the provisions of Section 512 were not complied with in that there is nothing to show that the Magistrate recording the evidence was satisfied that the accused had absconded and that there was no immediate prospect of his arrest; also as regards Naidu (P. W. 5) and Ramphal (P. W. 14) it is not shown that their attendance cannot be procured without an amount of delay, expense, or inconvenience, which would be unreasonable. The Additional Sessions Judge has admitted the evidence. (After referring to the evidence on the file of the Magistrate who recorded this evidence the judgment proceeded.) It will be seen that the Magistrate nowhere finds that the accused has absconded and that there is no immediate prospect of his arrest. The learned Assistant Advocate-General relying on Dayaram v. Emperor A.I.R. 1926 Lah. 83 and Emperor v. Bhagwati contended that it is enough in these cases that the Magistrate should have recorded the evidence under Section 512. The mere fact that he did so would be sufficient to justify an inference that he was satisfied that the accused was absconding provided there is evidence before him sufficient to reach such a conclusion. It is not necessary for him to record a finding to that effect because Section 512 does not require it. We are unable to agree.

(2.) IT is true Section 512 does not say anything in express terms about the necessity for recording such a finding, but with the utmost respect to the learned Lahore and Allahabad Judges we are of opinion that such a requirement is implicit in the words "If it is proved" which occur at the beginning of Section 512. The word "if" is conditional and signifies that a condition precedent has to be fulfilled before the evidence can be recorded. That condition is "proof" that the accused has absconded and that there is no immediate prospect of arresting him. We then have to consider when and where this "proof" must be adduced. That again, in our opinion, is clear from the section. The section runs: "If it is proved, etc the Court competent to try or commit for trial such personmay in his absence examine the witnesses, etc.". Therefore, it is clear that the proof must be adduced before the Court which records the evidence, or to use the words of the section, examine the witnesses.

(3.) THE next question is who has to be satisfied as to the proof--the Magistrate who conducts the examination? the Sessions Court?--or the High Court on appeal? That we think is fairly obvious from the words quoted "if it is proved the Court may...." But it becomes even clearer when we analyse the word "proved". "Proved" is defined in Section 3(2), Evidence Act, as follows: "A fact is said to be proved when, after considering the matters before it, the Court either believes, it to exist or considers its existence so probable, etc.". Now, if proof of the absconding, etc., is a condition precedent to the right to examine in the accused's absence, as we think it is, then obviously the only tribunal which can be satisfied about the existence of these facts is the Court recording the evidence, for the simple reason that there is no other tribunal competent to consider or handle the matter at that time.