Jayendra Vishnu Thakur vs State of Maharashtra
DATE OF THE CASE: 11 May 2009
APPELLANT: Jayendra Vishnu Thakur
RESPONDENT: The state of Maharashtra and another
BENCH/JUDGES: S.B. Sinha, Mukundakam Sharma
LEGAL PROVISIONS: Article 21 of the Constitution of India; Sections 82 & 299 of the Code of Criminal Procedure, 1973; Section 33 of the Indian Evidence Act, 1871; Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
FACTS OF THE CASE
On October 9, 1989, Suresh Narsinh Dube was killed at Nallasopara Railway Station in Mumbai. The deceased’s brother filed a complaint. The appellant, a proclaimed offender, was initially charge-sheeted along with others. He was arrested in Delhi in July 1993 in connection with another case. The Investigating Officer informed the TADA Court in Mumbai about the arrest. The appellant was arrested again in October 1993 in Maharashtra and produced before the Chief Judicial Magistrate. He was in judicial custody until December 1993. The case was split for the absconding accused. Charges were framed in December 1993. The State of Maharashtra sought the appellant’s presence but the High Court of Delhi dismissed the application. In July 1995, an application was filed admitting that the appellant had not been absconding. The Designated Judge refused to transfer the appellant to Maharashtra. The appellant’s plea against charges was dismissed, and he filed another application for a transfer warrant in August 1995.
The appellant was formally arrested in the present case on 4th August 1997 and charged with six other persons, including the appellant. The Senior Public Prosecutor filed applications for the depositions of PW-36 and nine witnesses, which were allowed due to an impugned order.
ISSUE RAISED
The appellant was arrested in one case but he was declared absconded in another case but the police were able to reach that person, so should the appellant be considered absconded and also the witnesses submission taken in the absence of the accused so that person appealed that the right to confront the witness is a fundamental right under article 21 of the Indian constitution.
CONTENTION OF THE PETITIONER
- TADA’s order is unsustainable as it failed to provide sufficient reasons for jurisdictional facts and legal requirements.
- The appellant’s presence could have been attained in a Delhi case, which was known to the prosecution, and jurisdictional facts need establishing absconding and absence of immediate arrest possibility.
- Confronting witnesses is a fundamental right under Article 21 and Section 299 of the Code of Criminal Procedure.
- The appellant’s arrest and subsequent applications show no absconding, deeming the order illegal and without jurisdiction.
- Prosecution fails to comply with Section 33 of Evidence Act requirements, as the court finds insufficient evidence.
- Section 82 of the Code of Criminal Procedure requires reason to believe for proclamation, while Section 299 requires jurisdiction exercised by the Court. Absconding alone cannot be grounds for invoking jurisdiction without finding the appellant intentionally avoiding arrest.
- Illegal collection of ten witnesses’ evidence in the trial phase renders impugned judgment unsustainable, denying admissibility in evidence.
CONTENTION BY DEFENCE
- Section 299 of the Code, Section 33 of the Evidence Act, and Section 14(5) of TADA each have distinct roles, although they may overlap. TADA is a special statute with overriding effects on other statutes, and sub-section (5) of Section 14 must also have an overriding effect on the Code of Criminal Procedure and Indian Evidence Act. Non-recording of reasons is only an irregularity, attracting provisions of Section 465 of the Code.
- The appellant was aware of the proceeding and participated in it occasionally. Charges against the appellant are estopped due to an order dated 20th December 1993, where he failed to cross-examine witnesses under Section 14(5) of TADA.
- Sub-section (5) of Section 14 of TADA does not require proving foundational facts beyond a reasonable doubt. The Court’s satisfaction based on material evidence must be considered satisfied. The Act aims to prevent and cope with terrorist and disruptive activities, with a Designated Judge holding trial power. Section 11 of TADA states that every offense punishable under the Act is triable only by the Designated Court within its local jurisdiction. Section 12 allows the Designated Court to try other offenses at the same trial if connected.
JUDGEMENT
Section 299 of the Code of Criminal Procedure allows for the deposition of a witness in the absence of an accused if the deponent is dead, incapable, or unavailable. Also, under Section 33 of the Evidence Act, of 1872, the right to watch prosecution witnesses deposing is a valuable right, but it has not been recognized as a fundamental right under Article 21 in India’s Constitution so the larger question of whether confronting a witness is a fundamental right is unnecessary.
An accused is entitled to a fair trial and speedy trial, but cannot interfere with governmental priorities. Courts have several options to proceed, but maintaining judicial dignity and decorum is crucial. The accused’s conduct may prevent the trial from proceeding, and it is essential to ensure the accused’s rights are upheld.
The Designated Judge issued a proclamation in February 1993, but it ceases to have effect once a person is arrested or capable of being brought to court. The appellant was not considered a proclaimed offender, and the trial court was duty-bound to provide for their participation in the trial. The appellant was absconding, and no charge sheet was filed against him. The learned Magistrate did not take cognizance against him, and he was not before the court on 30th December 1993, preventing him from participating in the trial. The appellant was arrested on August 4, 1993, and charges were filed on November 15, 2003.
The appellant’s right to cross-examine witnesses expired before this date, and the question of exercising this right could only arise after the date. The case was not attracted under sub-section (5) of Section 14, as the TADA Court specifically invoked Section 299 of the Code. Article 21, which ensures a fair trial, procedure, and investigation, allowed the appellant to be informed about his fundamental rights and statutory rights. The Special Public Prosecutor was required to record necessary materials to show the appellant was not an absconder after his arrest in the Delhi case.
Appellants suffered prejudice and when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be a nullity. For the reasons aforesaid the impugned order cannot be sustained. It is set aside accordingly. The appeal has been allowed.
CONCLUSION
The apex court allowed the appeal of the applicant who was declared absconded despite the fact that he was accessible to the police and also, he wasn’t given the chance of confronting the witnesses. The court dismissed the impugned order, during this case the court analysed all relevant sections and case laws.
Through this judgment, the need for cross-examination of the witnesses and the declaration of the absconded till a person is totally unreachable and wilfully trying to escape from the police became clear. The judgment of this case also upheld that there shouldn’t be any unnecessary violation of the fundamental rights and the principles of the natural justice.
written by Shivanshu Shivam intern under legal vidhiya
