- (1.) This criminal misc.petition under Section 482 Cr.P.C. has been filed by petitioner - Mohammed Shafik alias Sheikh Salim aggrieved by the order dated 29/7/2009 passed by learned Additional Sessions Judge No.1, Kota. Petitioner to facing trial for offence under Sections 302 and 148 IPC. Challan against him was filed in absentia with the aid of Section 299 Cr.P.C. along with co-accused on 23/5/1997. Co-accused Mahesh, Amin, Dinesh and Gurnam Singh were convicted for offence under Section 302 read with Sections 149, 147 and 148 IPC and were sentenced to life imprisonment. However, accused-petitioner was arrested in January 2007. Challan was filed against him in absentia and charge under the aforesaid offence was framed.
(2.) It was in the backdrop of the aforenoted facts that Public Prosecutor filed an application under Section 299 Cr.P.C. read with Section 33 of the Evidence Act with the prayer that statements of PW3 Man Singh, PW-7 Dr.M.M. Mishra and PW10 Aijaj Hussain, whose statements were recorded during trial of the co-accused in absence of the accused petitioner herein should be read in evidence without their production before the court because they have died. It is this order, which is impugned in this misc.petition.
(3.) Shri Surendra Sharma, learned counsel for the petitioner has argued that requirements of Section 299 Cr.P.C. were not fulfilled inasmuch as, when the trial against the co-accused was proceeded ex-parte in absence of the petitioner, Section 299 Cr.P.C. provides that if it is proved that there is no immediate prospect of arrest of petitioner, the court may in his absence examine the witness produced by the prosectuion and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry 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. Learned counsel argued that unless that satisfaction was arrived at by the learned trial court when trial of the co-accused proceeded, the statement of witnesses recorded in that trial cannot be read against the petitioner. Learned counsel also referred to Sub-Section (2) of Section 299 Cr.P.C. and argued that according to that section, an inquiry is required to be made by the judicial magistrate and examine those witnesses, who was if and without the accused is arrested, such statement can be read against him. That requirement has not been fulfilled. Petitioner would be gravely prejudiced by reason of the fact that he did not get the opportunity to crossexamine those witnesses. Exceptions carved out in Section 33 of the Evidence Act would not applicable to this case. Shri Surendra Sharma, learned counsel for the petitioner argued that the learned trial court has failed to correctly appreciate the judgment of Supreme Court in Nirmal Singh Vs. State of Haryana, 2000 AIR(SC) 1416. The order passed by the learned trial court is against the canons of principles of natural justice and basic principles of criminal jurisprudence. Learned counsel for the petitioner in support of his arguments placed reliance on the judgments of Supreme Court in Jayendra Vishnu Thakur Vs. State of Maharashtra and another, 2009 7 SCC 104 and Shashi Gena and others Vs. Khadal Swain, 2004 CrLR 297.;