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In Re: Nomula Laxminarayana - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1963CriLJ517
AppellantIn Re: Nomula Laxminarayana
Excerpt:
.....that the two pre-requisites mentionea above are fulfilled. in this case, at the time when the magistrate issued the warrant he had reason to feel that the first requisite was certainly satisfied. so, the learned magistrate did not have adequate grounds to feel satisfied that the second requisite was also fulfilled. if after issue of warrant, it could not be executed and the magistrate felt satisfied that there was no immediate prospect of arresting the accused i. even if it did, the magistrate could not hold such proceedings, if the two requisites mentioned above ware not satisfied. are satisfied, there can be no question of securing the presence of the accused by any process at the time of recording evidence under section 512 and if he turnea up, the proceedings under section 512..........in cri. r.c. no. 81 of 1962 as they are typical of both the revision cases.3. the police filed a charge-sheet dated 14-2-1961 before the trial court to the effect that the sole accused had committed offences under sections 420 and 4/1 i.p.c. the charge-sheet ends as follows;thus, the accused committed offences under sections 420 and 471 i.p.c. it is prayed that the accused may be punished as per law.in the charge-sheet, the name of the accused was shown in column no. 4, the heading of which runs thus:names and addresses of accused person not sent up for trial whether arrested or not arrested, including absconders (showing absconders in red ink).the heading of column no. 5 in the charge sheet states:names and addresses of accused persons in custody with dates of arrest.column no. 6.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. These two revision cases have been filed by one Nomula Lakshminaraya. In Cri.R.C. No. 81 of 1962, he prays for quashing the proceedings in C.C. No. 1239 of 1961 on the file of the IVth City Magistrate, Hyderadad for setting aside the order of the Chief City Magistrate, Hyderabad in Cri.R.P. No. 455 of 1961 and for discharging him. In Cri.R.C. No, 82 of 1962, he prays for quashing the proceedings in C.C. No. 1240 of 1961 on ' the file of the IVth City Magistrate, Hyderabad, for setting aside the order of the Chief City Magistrate, Hyderabad in Cri.R.P. No. 456 of 1961 and for discharging him. After giving notice to the Public Prosecutor, these two petitions were heard together by common consent and this common order is passed by me.

2. The relevant facts in Cri.R.C. No. 81 of 1962 are substantially similar to those concerned in Cri.R.C. No. 82 of 1962. In fact, though the learned IVth City Magistrate passed two separate orders, the learned Chief City Magistrate passed one common order in Cri.R.P.

Nos. 445 and 456 of 1961. I am dealing with the details of facts in Cri. R.C. No. 81 of 1962 as they are typical of both the revision cases.

3. The police filed a charge-sheet dated 14-2-1961 before the trial Court to the effect that the sole accused had committed offences under Sections 420 and 4/1 I.P.C. The charge-sheet ends as follows;

Thus, the accused committed offences under Sections 420 and 471 I.P.C. It is prayed that the accused may be punished as per law.

In the charge-sheet, the name of the accused was shown in column No. 4, the heading of which runs thus:

Names and addresses of accused person not sent up for trial whether arrested or not arrested, including absconders (showing absconders in red ink).

The heading of column No. 5 in the charge sheet states:

Names and addresses of accused persons in custody with dates of arrest.

Column No. 6 reads:

Names and addresses of accused persons on ball with dates of arrest.

In column Nos. 5 and 6, no entry was made in the charge-sheet. There was no mention or reference in the charge-sheet to Section 512 Cr.P.C. The IVth City Magistrate took the case on file and issued a bailable warrant.

4. On 25-2-1961, after the warrant was issued, the accused appeared before the Court and received copies of documents. He asked for an adjournment to 26-2-1961. Accordingly, the learned Magistrate adjourned the case to that date. On 26-2-1961, the accused actually appeared and asked for an adjournment to engage an Advocate and for hearing preliminary arguments. The learned Magistrate granted a long adjournment and posted the case to 23-3-1961. On that date, the accused appeared along with the Advocate, Sri. S.B. Dixit. The latter took an adjournment for filing an objection petition and got the case posted to 24-3-1961. On the latter date, the learned Counsel for the accused filed an objection petition contending that the proceedings in the case were not tenable on the main ground which has been described in that petition as follows:

That The petitioner-accused was shown as an absconder in the said two charge-sheets (viz., one in C.C. No. 1239 of 1961 and the other in C.C. No. 1240 of 1961) in column No. 4 in red ink. Thus, there was a 'Red Signal' on the face of the challans which escaped the notice of the trial Court.

On 27-3-1961, the police filed a fresh charge-sheet in each of the two cases. In the fresh charge-sheet, the police showed the name of the accused in column No. 5 and not in column No. 4 or in column No. 6.

5. On 4-4-61, the Public Prosecutor filed a counter in which it is stated as follows:

That the contents of Para 2 stating that the accused was shown as an absconder in the report is also correct and it is also correct that the evidence will be preserved under Section 512 Cr.P.C. against the absconding accused.

In the counter, it is also mentioned to the following effect:

That the contents of para 3 are wrong. As per law, the Court may, in any case, in which it is empowered by this Code to issue a summons for the appearance of any person issue a warrant, if the Court sees reasons to believe that the accused is absconding or will not obey his summons.

6. The learned ivth City Magistrate passed an order to this effect. The first charge-sheet did not make any reference to Section 512 Cr.P.C. and did not indicate that it was filed for any purpose connected with Section 512 Cr.P.C. It was only in the counter dated 4-4-61 that the prosecution stated that the report filed on 14-2-61 was for evidence to be recorded under Section 512 Cr.P.C. against the absconding accused. The Court took ccgnizance of the offence, on the charge-sheet dated 14-2-61 and it had power to issue process under Section 204 Cr.P.C. and accordingly, the Court issued the warrant. Therefore, the proceedings are certainly valid.

7. Against that order, the accused filed Cr.R.P. No. 445 of 1961 before the Chief City Magistrate, Hyderabad. The latter held as follows:

But, in this case no witnesses are examined in the absence of the accused. Simply because a warrant is issued by the IVth City Magistrate, it cannot be said that the accused is entitled to be discharged.

He also observed as follows:

I will not give a finding now whether a Magistrate can issue a warrant of arrest against an absconding accused or not. The accused is no longer an absconding accused. Fresh charge-sheets are filed after the accused appeared in Court. So it will not become illegal if a trial of the accused takes place now. As the accused appeared before the Court and is not absconding now, the various contentions raised in the petition are only of academic interest.

8. For the purpose of convenience, am hereafter referring to the charge-sheet dated 14-2-1961 as the first charge-sheet and the charge-sheet dated 27-3-1961 as the second charge-sheet.

9. In the first charge-sheet, there was no mention of Section 512 Cr.P.C. nor was there any reference to it. It is true that the name of the sole accused was shown in column No. 4. The learned Advocate for the accused, Shri Dixit, contends that this was a red signal, that it was an indication that steps for holding trial were not to be taken straight-away, that consequently warrant of arrest could not be issued and that evidence could be recorded only under Section 512 Cr.P.C. He argues that proceedings under Section 512 Cr.P.C. are not an inquiry or trial and hence no warrant of arrest could be issued for the accused. This contention that proceedings under Section 512 Cr.P.C. are neither an inquiry nor a trial is correct. It is supported by decisions in U Bahiaing v. Balabux Sudani AIR 1937 Rang 42 and State v. Bhimaraya AIR 1953 Hyd 63. In AIR 1937 Rang 42 the Rangoon High Court observed that the object of Section 512 (1) was solely to record, in a particular way and under particular circumstances, deposition of witnesses which might in the future be used against the accused when he was apprehended and brought to trial and that there was no enquiry, for there was nothing into which an inquiry could be made. In AIR 1953 Hyd 63, there is a passage running as follows: (at page 64)

Section 512 Cr.P.C. 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 Cr.P.C. 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.

In that case, a Division Bench of the Hyderabad High Court was dealing with an order of a Munsif Magistrate, Yadgir which purported to have been passed under Section 512 Cr.P.C. with respect to certain absconding accused. That order ran 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.

About this order, the learned Judges held as follows:

In our view, the Magistrate was not right in ordering the deletion of the names of absconding accused nor in observing that under Section 512 Cr.P.C. he will not issue any warrant for the arrest of the absconding accused in view of the sufficiency of evidence.' (Apparently the word 'sufficiency' refers to the words 'there is no sufficient proof of their participation at all in the order of the Magistrate).

It is clear, that, if there be proceedings under Section 512 Cr.P.C. by way of recording evidence, no warrant could be issued to the accused for being present at such proceedings (recording of evidence). This is obvious for what Section 512 Cr.P.C. contemplates is recording of evidence in the absence of the accused and, if the accusea were present, there could be no recording of evidence under Section 512 Cr.P.C. Further Section 512 (l) Cr.P.C. provides as a pre-requisite for recording of evidence ' lender that Section what appears from the following:

Section 512(1): 'If it is proved (i) that an accusea person has absconded, and (ii) that there is no immediate prospect of arresting him, 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.

10. The proceedings under Section 512 Cr.P.C. consist of recording of depositions in the absence of the accused. Such recording can be done only if the Magistrate feels satisfied that the two pre-requisites mentionea above are fulfilled. This is made clear in AIR 1953 Hya. 63. In Manobodh v. King-Emperor ILR (1944) Nag Sri : AIR 1944 Nag 274; Ghurbin Bind v. Queen-Empress ILK 10 Cal 1097 and Janu Kadir Baksh v. Emperor AIR 194/ Sind 122, it was held that proof of the abscondence of the accused was necessary before proceedings under Section 512 Cr.P.C. could be taken. In AIR 1947 Sind 122 it was also held that if there was evidence on record that the accused was absconding and there was no immediate prospect of his arrest, the absence of a formal finding to that effect would not invalidate the proceedings under Section 512 Cr.P.C. Hence, it is clear that before actually the recording of evidence was done by the Magistrate, he had to satisfy himself that the two requisites mentioned above were proved before him. For that purpose, he was competent to take steps. In this case, at the time when the Magistrate issued the warrant he had reason to feel that the first requisite was certainly satisfied. For, in column No. 4 of the first charge-sheet, it was shown that the accused was absconding. But, that charge-sheet did not show that there was no immediate prospect of arresting the accused. So, the learned Magistrate did not have adequate grounds to feel satisfied that the second requisite was also fulfilled. Consequently, he had to take steps to find out and satisfy himself that the second requisite was also fulfilled if he were to start proceedings of recording evidence under Section 512 Cr.P.C. Also, when the necessary second requirement was not fultillea positively, the Magistrate was not even bound to consider the question of starting proceedings under Section 512 Cr.P.C. It was open to him to deal with the case in the ordinary routine manner and take steps for trial. It was also open to him to issue process according to law to secure the presence of the accused. As there was charge under Section 420 I.P.C, it was open to him to lawfully issue a warrant for securing presence of the accused. If after issue of warrant, it could not be executed and the Magistrate felt satisfied that there was no immediate prospect of arresting the accused i.e., the second requirement for Section 512 Cr.P.C. it was open to him to record evidence under Section 512 Cr P. C. But, even then, he was not bound to start proceedings under Section 512 Cr.P.C. So, the action of the Magistrate in issuing a warrant was quite lawful. The warrant resulted in prompt appearance of the accused before the learned Magistrate, immediately after it (warrant) was issued. so, it could not be said that there was no immediate prospect of arresting him. The second requirement of Section 512 Cr.P.C. was proved to be not existent. Consequently, proceedings under Section 512 Cr.P.C. could not be held at all, and, therefore, there could not be any recording of evidence under Section 512 Cr.P.C.

11. Section 87 Cr.P.C. runs as follows-.

(1) If any Court has reason to relieve (whether after taking evidence or not) 'that any person' against whom a warrant has been issued by it 'has absconded' or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

With regard to this section, about an absconding person, the Lahore High Court observed in Qumar Din v. Emperor AIR 1922 Lah 475 as follows; (at pages 476-4//).

Action under Section 87 can be taken only when a Court has reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such a warrant cannot be executed. But a man, who files a petition against the order issuing the warrant and take stops to procure an order of a Superior Court that he should be allowed to remain on bail after such warrant has been issued, can neither be said to be absconding or concealing himself.

The facts of that case were different from the tacts in this case. Also, the provisions concerned therein were unfler Section 87 Cr.P.C. which are not identical with the provisions of Section 512 Cr.P.C. But, all the same, the above observations indicate the fact that a person, who has appeared in Court actually after a warrant was issued, cannot be said to be absconding.

12. The word 'abscond' has not been defined in the Code of Criminal Procedure. Its meaning as given in the Oxford Dictionary is 'to hide' or to get out of the way especially to escape a legal process. In Srinivasa Ayyangar v. The Queen ILR 4 Mad 393, the Madras Hign Court observed as follows: (at page 39/):

But the term 'abscond' is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense are to hide oneself; and it matters not whether a person departs from a place or remains on it, if he conceals himself; nor does the term apply only to the commencement of the concealment. If a person, having concealed himself before process Issues, continues to do so after it has issued, he absconds.

There is no provision for an inquiry under Section 512 Cr.P.C. for issuing a warrant or other process to secure! the presence of the accused for the proceedings. this is because the very pre-requisites for a proceeding under Section 512; Cr.P.C. are that the accused has absconded and there. is no immediate prospect of his arrest. The law takes note of what is practical and practicable. so, naturally in proceedings under Section Sit, which are lawfully held, the presence of the accused is not possible and it cannot be contemplated or secured by any other process. In fact, the Magistrate did not start proceedings under Section Cr.P.C. at any time. He did not record any evidence in the absence of the accused. As already observed, the first charge-sheet did not indicate that the police wanted or suggested proceedings under Section 512 Cr.P.C. Even if it did, the Magistrate could not hold such proceedings, if the two requisites mentioned above ware not satisfied. Even if they ware fulfilled, the Magistrate Was not bound to hold proceedings under Section 512 Cr.P.C. because the relevant words used in the Section are 'may and not 'shall'. The fact that the police showed the accused in column No. 4 of the first charge-sheet was only an indication of one particular fact namely, that the accused was not sent up for trial. But, that particular fact does not preclude the Magistrate from taking the case on file and holding steps to secure the presence of the, accused whom the police did not send up for trial, wtietnar on account of the accused being absconding or for other reasons. Section 204 Cr.P.C. read with Schedule 11 to the Cr.P.C. gives power to the Magistrate to issue process for securing the presence of the accused 'it, in the opinion of a Magistrate taking cognizance of offence, there is sufficient ground for proceeding'.

13. The learned advocate for the petitioner contenos that Section 204 Cr.P.C. would not apply for securing presence of an accused in proceedings under Section 512 Cr.P.C. But, as already stated by me, if the conditions pre-requisite for holding an inquiry under Section 512 Cr.P.C. are satisfied, there can be no question of securing the presence of the accused by any process at the time of recording evidence under Section 512 and if he turnea up, the proceedings under Section 512 cannot be held at all. In the present case, the learned Magistrate took cognizance of the case and obviously held that there was suffcient ground for proceeding. He issued a warrant which could be issued in this case as the charge contained an offence under Section 420 I.P.C. for which warrant COUIQ ordinarily issue in the first instance, as shown in column 4 of Schedule II. The fact that the police made the entry in column 4 in red ink is because the heading of the column 4 shows that absconders should be shown in rea ink.

14. Learned Advocate for the petitioner contends that this was red signal or danger signal, which the Magistrate had to make note of. If it were a signal which the Magistrate had to make note of, the signal was only that the accused was absconding and that steps had to be taken which the Magistrate considered necessary regarding the absconding accused. It was left to his discretion whether to take steps for trial of the case and secure the presence of the accused by issuing process under Section 204 Cr.P.C. or to take preliminary step: to satisfy himself whether conditions existed which rendered it necessary to hold proceedings under Section 512 Cr.P.C. Even if the police did indicate to the Magistrate or ask for proceedings under Section 512 Cr.P.C. the learnea Magistrate was not bound to hold such proceedings, it the entry in red ink be a red signal, it could not operate like the Traffic police showing a red signal to a motorist driving a car on the public road. In this matter of Section 512 Cr.P.C. once the charge-sheet was filed in the Court of the Magistrate, the latter took complete control and if the police made any suggestions as to how to proceed further with the case, it was a matter of the police proposing (not dictating) and the Magistrate disposing in accordance with law.

15. The object and purpose of Section 512 Cr.P.C. is not to protect an accused from being proceeded against by way of trial or inquiry because of his being absconding but are, on the contrary, to protect the evidence against the accused, which would be available at that time of the proceedings, becoming unavailable at a later stage after the absconding accused is secured. The effect of Section 512, Cr.P.C. is not meant to give any benefit to an accused and reward him for his absconding but to see that he does not get any undue benefit or advantage or defeat the law or escape from its provisions permanently by his absconding. That effect is secured by subjecting him to certain important and special consequences, namely, the evidence of witnesses recorded in his absence, being used against him in an inquiry or trial after he is being secured under circumstances mentioned in Section 512 Cr.P.C. which could not be so used but for Section 512 Cr.P.C.

16. The position in the present case is as follows. The Magistrate when he issued the warrant did not do so for the proceedings under Section 512 Cr.P.C. No illegality or irregularity has been committed by the learned Magistrate in issuing the warrant. No prejudice has been caused to the accused by issuing the warrant, The learned Magistrate could have proceeded further even on the first charge-sheet after the accused turned up. There was no need to file a second charge-sheet, just for the purpose of showing the accused in column No. 5 instead of column No. 4. But, all the same, the police did file a second charge-sheet. There is no principle of law that once an accused is absconding, he must always be absconding. The very purpose of Section 512 Cr.P.C. is based on the contemplation that an accused who is absconding at the time when the proceedings under Section 512 are held and about whose arrest there is no immediate prospect, is likely to be available for trial or inquiry ana cease to be absconding on some future date. If it were otherwise, there would be no meaning in a provision like Section 512 Cr.P.C.

17. The quashing of the proceedings as prayed for by the accused, simply because of warrant having been issued, would if granted, result in the accused being treed from being proceeded against for grave offences. Quashing would not be justified on the facts and circumstances of this case merely because the Magistrate issued a warrant for appearance of the accused. I see no reason to disagree with the finding of the Chief City Magistrate that the proceedings of the IVth City Magistrate are valid.

18. I find that there is no sufficient ground for quashing the proceedings and to discharge the accused. The same position holds good as regards Cri. R.c. No. 82 of 1952 also.

19. In the result, I dismiss both the revisions.


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