Jaganmohan Reddy, J.
1. This is a reference by the District and Sessions Judge, Gulbarga, for quashing the order of the Munsiff-Magistrate, Yadir, purporting to have been made under Section 512 of Criminal Procedure Code with respect to certain absconding accused. The order is as follows:
As regards the so-called absconding accused there is no sufficient proof of their participation at all, hence I do not find any reason to act under Section 512 of the Criminal Procedure Code and issue any warrant against them, hence their names are worth being deleted.
2. Section 512, Criminal Procedure Code merely authorises the trial court or the committing court in a case where it is proved that the accused has absconded and that there is no immediate prospect of arresting him to, examine the witnesses (if any) produced cm-behalf of the prosecution and record their depositions. 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 his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. The object of this Section is to enable the prosecution in the circumstances mentioned above to utilise the depositions under Section 33 of the Evidence Act which makes the previous depositions of a witness in a judicial proceeding relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceedings the truth of the facts which it states when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party or his attendance cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances the court considers unreasonable; provided among other things that the adverse party in the first proceeding had the right and opportunity to cross-examine. The special rule of evidence enacted by Section 512 of the Criminal Procedure Code is an exception to the general rule specified in Section 33 of Evidence Act and the evidence recorded in a previous trial would be treated as evidence subject to the conditions specified already against the absconding accused, notwithstanding the fact that he had no opportunity to cross-examine them at the time the evidence was taken.
In - Emperor v. Sardar 18 Cri LJ 975 (Lah), where the Court convicted two of the accused who absconded during the course of the trial, it was held that the Court had no power to convict the accused in those circumstances when they were not present, though no doubt the Court might proceed under Section 512 of the Criminal Procedure Code if the evidence for the prosecution was incomplete. In our view the Magistrate was not right in. ordering the deletion of the names of the absconding accused, nor in observing that under Section 512 of the Criminal Procedure Code he will not issue any warrant for the arrest of the absconding accused in view of the sufficiency of evidence. Section 512 of the Criminal Procedure Code, as has been seen does not authorise the Magistrate either to delete the name of an absconding accused which in effect is an acquittal of the accused, or to issue a warrant of arrest. All that he has to do, under Section 512 of the Criminal Procedure Code is to satisfy himself that the accused are absconding and that there is no likelihood of their apprehension. Once he comes to that conclusion he may order that the evidence be recorded under Section 512 against the absconding accused.
3. It also appears to us that the evidence recorded in the case of the trial of a co-accused of the absconder or other persons cannot by 'ex-post facto' operation be treated as evidence recorded under Section 512 for the purpose of utilising it at the trial of the absconder when he is apprehended and tried subsequently. The prosecution should move the Court and prove by evidence before the recording of evidence against the co-accused that certain persons are absconding and that it is not possible to apprehend them. It is for the Court thereafter to give directions that the evidence about to be taken is being taken for the purpose of being used if necessary against the absconder under Section 512 of the Criminal Procedure Code as well as against the persons present and on trial. The above view was also expressed by a Bench of the Patna High Court in - Emperor v. Baharuddin 39 Cri LJ 281 (Pat).
4. Even though the prosecution has stated in the charge-sheet that the evidence to be recorded against the co-accused should be recorded under Section 512 of the Criminal Procedure Code against the absconding accused, neither the proof relating to the absconding of the accused, nor the fact that there is no ^immediate prospect of their being apprehended in the near future was given. The direction of the court with respect to the recording of evidence under Section 512 of the Criminal Procedure Code against the alleged absconding accused was also not sought, nor has the court given any such directions. In these circumstances, we cannot order the evidene already recorded as having been deemed to have been recorded under Section 512 of the Criminal Procedure Code. We, however, accept the reference of the learned Sessions Judge and set aside the order contained in the passage of the judgment of the Munsiff-Magistrate, Yadgir dated 31.8.1951 cited above.